On August 26, the federal government is scheduled to execute a man named Lezmond Mitchell. While there are many reasons a state-sanctioned execution might be challenged — like inadequate evidence of guilt, wishes of a victim’s family, or because capitol punishment itself is seen as unethical — Mitchell’s is being contested for a different reason entirely: an affront to tribal sovereignty. Mitchell is being executed against the will of the Navajo Nation, of which he is a citizen.
If Mitchell is executed, it will be the first time in modern history that a Native American is executed by the government, in direct violation of federal law. Now, his tribe is asking President Trump to commute his sentence to life in prison.
“The United States Department of Justice sought the death penalty against Mr. Mitchell despite the Navajo Nation’s public opposition, against the express wishes of the victim’s family, and ostensibly against the recommendation of the U.S. Attorney for the District of Arizona,” Jonathan Nez and Myron Lizer, President and Vice President of the Navajo Nation respectively, wrote in a letter. “The Navajo Nation is respectfully requesting a commutation of the death sentence and the imposition of a life sentence for Mr. Mitchell. 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.”
In less than 10 days the federal government is scheduled to execute the first Native American in modern history.— Rebecca Nagle (@rebeccanagle) August 18, 2020
Against the wishes of his tribe AND in violation of federal law.
Mitchell, 38, was involved in a kidnapping and murder of two Navajo Nation citizens, a 63-year-old grandmother and 9-year-old granddaughter, in 2001. He was 20 years old at the time; the prosecutor identified Mitchell’s accomplice — another citizen of the Navajo Nation — as the primary assailant in the incident, but as he was under 18 at the time he was not eligible to be sentenced to death for his role in the crime.
But the current sentence for Mitchell is unprecedented in so many ways, and defies a different statue. The crimes occurred on Navajo Nation land by Navajo perpetrators against Navajo victims. Under the Major Crimes Act of 1885, certain felonies perpetrated by Native Americans in Native territory are punishable under federal law, and some of the offenses Mitchell was convicted of fall within that purview. However, the Federal Death Penalty Act, passed in 1994, included a “tribal option” which allowed Native tribes the ability to opt-in or out of pursuing the death penalty for crimes committed against Native citizens.
For this reason, the Navajo Nation is demanding Mitchell's sentence be commuted immediately. The United States’ decision to seek the death penalty against Mitchell “ignored the intent of the tribal opt-in provisions of the Federal Death Penalty Act,” their letter reads.
But it seems that authorities have found a workaround to this rule. In order to make it possible to pursue the death penalty for Mitchell, prosecutors added a non-Major Crimes Act crime — carjacking — to the list of crimes Mitchell was charged with, which allowed them to circumvent the clause in the Federal Dealth Penality Act giving tribes the authority to decide whether a Native person is put to death. This will also allow them to pursue the death penalty against the wishes of the tribe, its citizens, and the victims’ family.
“The Major Crimes Act itself, and its continued use, is proof that the government does not value Native culture. It became law because settlers were unwilling to accept the administration of tribal justice between Natives on Native land,” Ruth Hopkins, a Dakota/Lakota Sioux writer, wrote at The Appeal. According to Hopkins, who is an enrolled member of the Sisseton Wahpeton Sioux Tribe and tribal attorney, “the execution of Mitchell against the will of the Navajo Nation only perpetuates this country’s dreadful history of colonial violence and oppression of Indigenous peoples.
"It furthers genocide still being committed against them and is a breach of trust that damages the government-to-government relationship that current federal policy claims to aspire to,” Hopkins says.
According to the New York Times, Mitchell’s rights were violated over and over again in the prosecution of his case, from his arrest to his trial, including discrimination in jury selection by deliberately keeping Native people off the jury. He was convicted by a jury that was 92 percent white, during a trial that played into anti-Indian biases. It's unclear based on his lawyers work what the biases were, though Carl Slater, a delegate to the Navajo Nation Council, says that Mitchell was definitively a target for prosecutors.
“If Mr. Mitchell was not an Indian, I strongly doubt he would be facing the death penalty today,” Slater wrote in the Times.
The Navajo Nation has been trying to challenge the death sentence since Mitchell was first charged, but so far, to no avail. In 2002, Navajo Attorney General Levon Henry wrote a letter asking the federal government not to seek the death penalty at the request of the tribe. A request for commuting the sentence was made by another Navajo Attorney General in 2014. Current Navajo leadership has been vocal in trying to stop the execution, and Mitchell himself has filed a petition for clemency.
"The Navajo Nation continues to advocate for a life sentence, and sees the federal government’s decision to move forward with an execution as a violation of its sovereignty," the petition reads. "Similarly, tribal nations around the country have expressed their dismay at Lezmond’s impending execution and join Lezmond in petitioning President Trump for clemency."
Lezmond Mitchell remains the only Native American person on federal death row.