Lezmond Mitchell, a member of the Navajo Nation, is scheduled to be executed on Wednesday by the federal government in what many are calling a profound violation of Navajo sovereignty.
In 2001, 20-year-old Lezmond Mitchell and a 16-year-old friend were arrested in the killing of a Navajo woman and child on the Navajo reservation in the northeast corner of Arizona.
Under the Major Crimes Act of 1885, the federal government has exclusive criminal jurisdiction over serious felonies committed on tribal land by tribal members, like this case. But the death penalty is prohibited for crimes on tribal land prosecuted under the Major Crimes Act unless the affected tribe has decided to allow it—the so-called “tribal option.”
The Navajo Nation opposes capital punishment on cultural and religious grounds and, like many tribes, it has never “opted in” to the federal death penalty.
After Mr. Mitchell’s arrest, the tribe held public hearings to decide whether to support the death penalty in his case. Members of the victims’ family expressed opposition to the death penalty and Marlene Sims, the victims’ daughter and mother, asked prosecutors to seek a life-without-parole sentence.
The Navajo Nation ultimately objected to the death penalty in letters to the U.S. attorney of Arizona, who agreed not to seek capital punishment.
But the Justice Department found a way around the tribal option. Federal prosecutors charged Mr. Mitchell with carjacking resulting in a death—a charge that didn’t fall under the Major Crimes Act and wasn’t subject to the tribal option.
Mr. Mitchell was tried in Phoenix, more than 200 miles from the Navajo reservation. Evidence set out in court filings indicates that federal prosecutors worked to keep Native people off the jury and stoked bias against indigenous people during the trial. “As a result, Lezmond was convicted by a jury of 11 white persons and only one Navajo,” the petition says.
The jury heard little about Mr. Mitchell’s background of intergenerational trauma, addiction, and mental illness, or that on the day of the offense, Mr. Mitchell had been awake for several days and had ingested enough drugs and alcohol to cause a psychotic break. He was sentenced to death.
In April, the U.S. Court of Appeals for the Ninth Circuit rejected Mr. Mitchell’s challenge to a lower court’s refusal to allow him to interview his jurors about racial bias, but judges condemned the government’s use of what the late Judge Stephen Reinhardt called in an earlier dissent “a loophole to circumvent” Navajo sovereignty.
“The 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,” Judge Morgan Christen wrote in a concurring opinion. “[T]he United States made an express commitment to tribal sovereignty when it enacted the tribal option, and by seeking the death penalty in this case, the United States walked away from that commitment.”
Judge Andrew Hurwitz in a separate concurrence urged the Trump administration to “take a fresh look at the wisdom of imposing the death penalty,” saying that “a proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it.”
“He Should Not Be Executed”
The National Congress of American Indians, 13 tribal governments, and Native Americans across the country have joined Navajo Nation President Jonathan Nez in asking President Donald Trump to commute Mr. Mitchell’s death sentence.
“Mr. Mitchell’s death sentence deeply offends the tribal sovereignty of the Navajo Nation as well as the values of many Native American people,” said a letter to the president signed by more than 230 members from more than 90 U.S. tribes. “He should not be executed.”
The Justice Department plans to make Mr. Mitchell the first Native American in modern history to be executed by the U.S. government for a crime committed against another Native American on tribal land, despite the tribe’s objections.
American Indian advocates have pointed to the stark contrast between the government’s effort to kill the only Native American under a federal death sentence and recent progress in recognizing the deep historical and ongoing racial injustices inflicted on Native Americans. Just last month, the Supreme Court reaffirmed the sovereignty of tribal nations in a widely heralded decision.
“The United States is taking stock of its history of racial injustice, including the many traumas perpetrated against American Indians,” Navajo leader Carl Slater wrote in the New York Times. “To carry out Lezmond Mitchell’s execution, despite the profound infringement on tribal sovereignty that his case represents, would be a grave injustice.”
Update: Mr. Mitchell was executed on August 26, 2020.