On August 26th, 2020, the United States government executed Lezmond Mitchell, the only Native American on federal death row, continuing the Trump administration’s aggressive reinstatement of federal executions after a seventeen-year delay. Mr. Mitchell was pronounced dead at 6:29 PM. Mr. Mitchell’s execution was the 1523rd execution in the United States since the death penalty was reinstated in 1976 and the fourth federal execution in 2020. Two days later, the federal government executed Keith Nelson, who was pronounced dead on August 28th at 4:32 PM. With the federal death toll at five people, the federal government has carried out more executions in the past two months than in the preceding fifty-seven years. They plan to carry out two more by the end of September.
There are many problems with the way the federal government has been going about killing the people on its death row, and Mr. Mitchell’s case is no exception: as with the other people whom the federal government has executed, the global pandemic is still raging, and several of the victims’ loved ones opposed Mr. Mitchell’s death sentence. Further, there were real concerns about Mr. Mitchell’s culpability compared to that of his co-defendant, who did not receive a death sentence for his involvement because he was sixteen at the time of the offense. Mr. Mitchell himself had only just turned twenty years old at the time of the offense and had no prior history of violence. While there is Supreme Court precedent stating that juveniles under eighteen are not mature enough to be sentenced to death, this law disregards research developments that acknowledge that the parts of the brain that control decision-making, rational thought, and impulse control do not fully develop until at least age twenty-five. Mr. Mitchell was still developmentally adolescent when he committed his crime, having the same suggestibility to peer influence, lack of impulse control, and, perhaps most importantly, capacity for change that the Supreme Court recognized as mandating a life sentence for people under eighteen.
Further, to say that the selection of Mr. Mitchell’s jury was tainted with bias would be a gross understatement. Native Americans were systematically excluded from jury service at an astoundingly high rate. More than ninety-nine percent of the Native Americans called to serve on Mr. Mitchell’s trial were excused from service, including twenty-eight of the twenty-nine Native Americans who appeared for voir dire, who were dismissed by the trial judge even before peremptory strikes were exercised. The judge’s reasons for dismissing Navajo jurors for “cause” included that they were “traditional” and “valued human life.” Further, the trial judge asked blatantly race- or tribal affiliation-based questions of several potential Navajo jurors, for example: “Would the fact that [Mr. Mitchell] is a Navajo and you’re a Navajo, would that affect your ability to be fair and impartial in this case? . . . You can sit in judgment of a fellow Navajo?” This overt racism went unchallenged by Mr. Mitchell’s three attorneys, and ultimately, only one Native juror sat on his trial.
However, another, even larger problem is notable in Mr. Mitchell’s case: a gross infringement on the tribal sovereignty of the Navajo Nation. Mr. Mitchell was the only Native American on federal death row. The offense in question occurred on tribal lands and involved only tribal members. The Federal government, in charging Mr. Mitchell capitally, utterly disregarded the Navajo Nation’s explicit opposition to capital punishment. They continued this blatant disrespect up until Mr. Mitchell’s final moments. Mr. Mitchell was executed shortly after the Supreme Court reaffirmed the importance of tribal sovereignty in McGirt v. Oklahoma, where the Court vacated the death sentence of Jimcy McGirt for an offense that occured on the tribal lands of the Muscogee (Creek) Nation between tribal members.
The Governing Law
The governing law that allows the Federal Government the legal authority to prosecute tribal citizens is the Major Crimes Act of 1885, 18 U.S.C. § 1153. This law provides federal jurisdiction for certain criminal offenses that occur within a tribal territory and where the defendant and victim(s) are both Native American. This act significantly infringes on tribal sovereignty, allowing the federal government to prosecute tribal citizens without obtaining tribal consent. Specifically, § 1153 provides jurisdiction to prosecute murder, manslaughter, kidnapping, incest, certain felonies including child abuse or neglect, arson, burglary, robbery, and maritime offenses under 18 U.S.C. § 661. The Major Crimes Act allows federal jurisdiction for a murder prosecution without tribal consent but does not authorize a capital murder prosecution.
Mr. Mitchell was charged and prosecuted under the Federal Death Penalty Act of 1994. The Federal Death Penalty Act gives the federal government criminal jurisdiction to prosecute certain offenses capitally, subject to the limitations imposed on capital punishment by Congress and the Supreme Court. Under this act, the federal government must obtain explicit consent from tribal nations before pursuing capital prosecutions of offenses that occur between tribal members and on tribal lands. Congress wanted to ensure that Native tribes are able to make the determination of whether their citizens are subject to execution by the federal government. Therefore, the Federal Death Penalty Act requires tribal consent to seek death for the offenses listed in the Major Crimes Act.
Tribal governments are free to withhold their consent to federal capital prosecutions and can choose to “opt out” of the federal death penalty. The majority of the 574 federally recognized tribes have chosen to opt out, including the Navajo Nation. In fact, only one tribe, the Sac and Fox Nation of Oklahoma, has opted into the federal death penalty. In choosing to “opt out,” the tribal government ensures that the federal government cannot seek the death penalty as punishment for crimes committed between Native Americans on tribal land, as was the case in the crime of which Mr. Mitchell was accused. The federal government was only able to seek the death penalty against Mr. Mitchell through a legal loophole: “carjacking resulting in death,” one of the crimes of which Mr. Mitchell was convicted, is considered outside of the scope of the Major Crimes Act. This charge was sought instead of murder under the Federal Death Penalty Act specifically to avoid the tribal consent provision, which is only required for the offenses enumerated in the Major Crimes Act. Therefore, Mr. Mitchell’s death sentence for this crime technically did not require the consent of the Navajo Nation under law. The Navajo Nation has consistently and strenuously objected to Mr. Mitchell’s execution.
Tribal Opposition to Mr. Mitchell’s Execution and Clemency
Mr. Mitchell was the first Native American sentenced to death when the federal government resumed use of the death penalty in 1994, and the only Native American on federal death row. Throughout the investigation, prosecution, and appeals, the Navajo Nation stood firm in the belief that taking human life should never be used as a punishment and their vehement opposition of capital punishment in Mr. Mitchell’s case.
The Navajo Nation never agreed to be subject to jurisdiction under the Federal Death Penalty Act of 1994. In fact, in choosing to “opt out” of the federal death penalty, they explicitly rejected the federal government’s use of capital punishment. The Navajo Nation testified in front of Congress during the debates around the passage of the Federal Death Penalty Act. When the investigation of Mr. Mitchell began, the federal government consulted the Navajo Nation about whether to seek death in his case. The Navajo Nation “definitively denounced” the use of the federal death penalty against Mr. Mitchell, and the Navajo Nation’s Attorney General, Levon Henry, informed the U.S. Attorney in charge of Mr. Mitchell’s case that the Navajo Nation did not consent to a death sentence. Specifically, Henry, in a letter to the Department of Justice, wrote, “As part of Navajo cultural and religious values we do not support the concept of capital punishment. Navajo holds life sacred. Our culture and religion teach us to value life and instruct against the taking of human life for vengeance . . . .The capital punishment sentence removes with any possibility of restoring the harmony in a society.” The death penalty violates the Navajo Nation’s concept of hozhooji naat’aanii, or “hozho,” a Navajo spiritual doctrine that provides for peacefully addressing crimes and disputes by “talking things out” in a “good way,” which is central to their tribal justice concepts. The U.S. Attorney originally agreed with Henry’s recommendation, promising not to seek a capital prosecution. Then-Attorney General John Ashcroft specifically ordered the prosecutor to disrespect the tribal consent provisions and protections and to find a way to seek a death sentence for Mr. Mitchell.
The Navajo Nation supported clemency on Mr. Mitchell’s behalf following the scheduling of his execution in 2019 and re-scheduling of his execution in 2020. Mr. Mitchell filed clemency petitions promptly after the setting of his execution dates in 2019 and 2020. The main basis for clemency that Mitchell put forth in his application was the federal government’s severe infringement on tribal sovereignty in his case. The application also discussed the severe trauma he experienced and its impacts, which were entirely absent from his mitigation case at trial; his relative culpability in the offense; and the actions he had taken that portray his deep remorse and acceptance of responsibility for the offense.
In July 2020, shortly after Lezmond’s August execution date was set, Jonathan Nez, the president of the Navajo Nation, wrote to President Trump urging him to consider leniency for Mr. Mitchell and to commute his sentence to life without the possibility of parole. Mr. Nez emphasized the Navajo Nation’s opposition to capital punishment in general and Mr. Mitchell’s sentence in particular: “This request 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.” The Native American Rights Fund, ACLU, and National Association of Criminal Defense Lawyers also sent a letter to President Trump supporting clemency efforts on Mr. Mitchell’s behalf on similar grounds. Further, Navajo leaders expressed (well-founded) concern that allowing Mr. Mitchell’s execution to go forward would establish a precedent that allows the federal government to kill Native Americans regardless of the position of the sovereign tribe. Other Native American leaders and people similarly urged President Trump to respect the traditions and pleas of the Navajo Nation regarding capital punishment, including the National Congress of American Indians, thirteen tribal leaders, and a number of individual Native American citizens from over ninety tribes.
Injustice in the Clemency Process
Mr. Mitchell sought injunctive relief from his execution on the basis that his due process rights to clemency were violated when he was provided only twenty-eight days’ notice of his execution, depriving Mr. Mitchell of the full thirty days in which he could have applied for clemency. Mr. Mitchell’s attorneys asserted that the federal government deliberately set Mr. Mitchell’s execution date so as to deny him his full opportunity to seek clemency, expecting that Mr. Mitchell would not be alive for the full period of time afforded him to request that his sentence be commuted. In response, the United States Pardon Attorney asserted that she had already conducted an investigation and made a recommendation to President Trump. However, the investigation and recommendation neither cure nor excuse the original problem: that the government deliberately set Mr. Mitchell’s execution date to ensure that Mr. Mitchell was deprived of some of the time guaranteed him to apply for clemency.
In a further act of disrespect towards the Navajo Nation, Mr. Mitchell was executed without any ruling on his clemency petition. Mr. Mitchell’s attorneys filed a petition with the support of the Navajo government, asserting that Mr. Mitchell deserved clemency for a number of the reasons discussed above, including that his execution would violate the sovereignty and beliefs of the Navajo Nation, that Mr. Mitchell was not the primary aggressor in the crime and has worked to improve himself while in prison, and that not only the Navajo Nation but also community members, other Native American tribes, and even surviving victims opposed the death penalty for Mr. Mitchell. The federal government’s execution of Mr. Mitchell, without bothering to give these arguments any consideration, is grossly disrespectful to the Navajo Nation and once again betrays the Trump administration’s utter disregard not only for groups that it views as “other,” including tribal governments, but for human life in general.
Mr. Mitchell’s state-sanctioned murder is just one of many horrific instances in which the United States has harmed Native communities. As Mr. Mitchell’s attorneys said, “We hope that the future will bring greater respect for the sovereignty of Indian nations and for the traditions of their people.” We all must demand better for Native American peoples and tribes. We must all work together to ensure better.
The authors acknowledge that Cornell Law School’s Journal of Law & Public Policy operates on the sovereign land of the Cayuga Nation, members of the Haudenosaunee Confederacy. The authors wish to extend their respect to its people and elders.
The authors also wish to express deep gratitude to Emily Harwell for her thoughtful suggestions and feedback in the drafting process for this piece.
Rosalind Major is a third-year at Cornell Law School. Before law school, Rosalind attended Davidson College, studying Gender and Sexuality Studies. Rosalind is passionate about capital and criminally long sentencing post-conviction work and trauma-informed legal defense work. At Cornell, Rosalind has been involved in the Capital Punishment Clinic, the Women’s Decarceration Practicum, and the International Human Rights Clinic. This past summer, Rosalind interned at the Capital Habeas Unit for the Federal Community Defender’s Office for the Eastern District of Pennsylvania.
Allison Franz is a third-year student at Cornell Law School. Prior to law school, Allison earned her B.S. in Human Development from Cornell University. At Cornell, Allison is involved in the Capital Punishment Clinic, the International Human Rights Clinic, and the Cornell Prison Education Program, teaching college-level courses to incarcerated students, and plans to pursue a career in capital defense. This past summer, Allison assisted in the representation of death-sentenced clients at Justice 360.
Suggested Citation: Rosalind Major & Allison Franz, Denying Indigenous Sovereignty: The Execution of Lezmond Mitchell, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Sept. 4, 2020), http://jlpp.org/blogzine/denying-indigenous-sovereignty-the-execution-of-lezmond-mitchell/.