On August 26, 2020, over the steadfast objections of Navajo leaders, the U.S. government executed Lezmond Mitchell, the first and only Native American in modern history to be sentenced to death by the federal government for a crime committed against another Native American on tribal land.^{1 Hailey Fuchs, “Justice Dept. Executes Native American Man Convicted of Murder,” New York Times, Aug. 26, 2020; Lauren Gill, “U.S. Executes Lezmond Mitchell Over Objections of the Navajo Nation,” The Appeal, Aug. 26, 2020; “Ignoring Tribal Sovereignty, Federal Government Executes Native American Death-Row Prisoner Lezmond Mitchell,” Death Penalty Information Center, Aug. 27, 2020.}

Racial bias against Native Americans infected Mr. Mitchell’s case from the start. At the government’s request, his trial was moved from the Navajo Reservation to Phoenix, Arizona,^{2 Memorandum in Support of Petition for Clemency and Commutation of Death Sentence at 3, In re Lezmond Charles Mitchell (July 31, 2020); Appellant’s Replacement Opening Brief, United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) (No. CR-01-1062), 2006 WL 2951921.} where the population was only about two percent Native American.^{3 American Community Survey Demographic and Housing Estimates, U.S. Census Bureau, tbl.DP05 (2019).}

The federal trial judge excluded for cause all but one of the 30 Native Americans who appeared for jury service.^{4 United States v. Mitchell, 502 F.3d 931, 953 (9th Cir. 2007).} Four were excluded because they spoke Navajo as their first language.^{5 Mitchell v. United States, No. CR-01-1062-PCT-MHM, 2010 WL 3895691, at *18 (D. Ariz. Sept. 30, 2010), aff’d, 790 F.3d 881 (9th Cir. 2015). Federal courts and most state courts restrict the rights of people with limited English proficiency to serve on juries. See, e.g., Jury Selection and Service Act of 1968, 28 U.S.C. § 1865 (citizens not qualified to serve on grand or petit juries in federal district court if they are “unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form” or “unable to speak the English language”); Ala. Code § 12-16-59 (citizens qualified to serve as jurors must be “able to read, speak, understand and follow instructions given by a judge in the English language”); Cal. Civ. Proc. Code § 203 (disqualifying from jury service “[p]ersons who are not possessed of sufficient knowledge of the English language”); Conn. Gen. Stat. Ann. § 51-217 (citizens disqualified from jury service if they are “not able to speak and understand the English language); La. Code Crim. Proc. Ann. art. 401 (citizens qualified to serve on juries must “[b]e able to read, write, and speak the English language and be possessed of sufficient knowledge of the English language”); Mo. Ann. Stat. § 494.425 (disqualifying from jury service “[a]ny person unable to read, speak and understand the English language”); Pa. Cons. Stat. § 4502 (citizens not qualified to be jurors if they are “unable to read, write, speak and understand the English language”); Vt. Stat. Ann. tit. 4 § 962 (citizens qualified to be jurors must be “able to read, write, understand, and speak the English language”). Eighty-seven percent of people with limited English proficiency in the United States are people of color, so in jurisdictions with large numbers of people with limited English proficiency, these restrictions tend to produce juries that are not representative of the community. Jasmine B. Gonzales Rose, “Language Disenfranchisement in Juries: A Call for Constitutional Remediation,” Hastings Law Journal 65 (2014): 814-15.} Eight were excluded because they opposed capital punishment.^{6 Memorandum in Support of Petition for Clemency and Commutation of Death Sentence at 20, In re Lezmond Charles Mitchell (July 31, 2020).}

The judge asked several Native American potential jurors if they could be fair and impartial in a case with a Native American defendant, and dismissed one juror because he said he was “a traditional Navajo” who believed in the value of life.^{7 Appellant’s Replacement Opening Brief, United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) (No. CR-01-1062), 2006 WL 2951921.}

Mr. Mitchell was convicted and sentenced to death by a jury made up of 11 white people and one citizen of the Navajo Nation.^{8 Memorandum in Support of Petition for Clemency and Commutation of Death Sentence at 3, In re Lezmond Charles Mitchell (July 31, 2020). The prosecution attempted to use a peremptory strike against the remaining Navajo veniremember, but the district court disallowed the challenge on Batson grounds. Mitchell, 502 F.3d at 956-57.}

The exclusion of Native Americans from federal jury service is not new. In 1884, the Supreme Court exempted Native Americans born on tribal lands from birthright citizenship, meaning that Native Americans were excluded from federal jury service until Congress declared them citizens in 1924.^{9 Elk v. Wilkins, 112 U.S. 94, 102 (1884); An Act to Authorize the Secretary of the Interior to Issue Certificates of Citizenship to Indians, 43 Stat. 253, ch. 233 (June 2, 1924) (codified as amended at 8 U.S.C. § 1401(b)); Albert W.Alschuler and Andrew G. Deiss, “A Brief History of the Criminal Jury in the United States,” University of Chicago Law Review 61 (1994): 884 n.87; see also Amy R. Motomura, “The American Jury: Can Noncitizens Still Be Excluded?” Stanford Law Review 64 (2012): 1504 & n.1 (“In the United States, all jurors must be U.S. citizens”); Willard Hughes Rollings, “Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West, 1830-1965,” Nevada Law Journal 5 (2004): 127.}

Around the same time, in 1885, Congress expanded federal jurisdiction over crimes committed by Native Americans on tribal land, which allowed the federal government to try offenses committed there in federal courts that excluded Native Americans from juries, rather than in tribal courts, even when both the victim and the alleged perpetrator were Native American.

Today, federal courts continue to disproportionately exclude Native Americans from jury service.^{10 Kevin K. Washburn, “American Indians, Crime, and the Law,” Michigan Law Review 104 (2006): 750.}

Most federal courts create their jury pools using state voter rolls that exclude Native Americans who are not registered to vote. And courts refuse to provide the resources, like transportation, that would make it possible for Native Americans living in poverty or on reservations hundreds of miles from a federal courthouse to serve on federal juries.^{11 Washburn, “American Indians, Crime, and the Law,” 748-49.}