The Federal Government’s Decision To Execute Lezmond Mitchell Is A Direct Affront To Tribal Rule

This commentary is part of The Appeal’s collection of opinion and analysis.

On Aug. 26, the United States government plans to subvert Native nations’ constitutionally recognized inherent right to self-govern in an unprecedented act of federal overreach. They’ve arranged for the state-sanctioned murder of a Navajo Nation citizen, Lezmond Mitchell, against the express wishes of the Navajo Nation.

This is the first time the federal government has pursued the death sentence in the case of a Native person over tribal opposition since laws were established that determined criminal jurisdiction regarding tribal members. Some of the offenses Mitchell was convicted of fall under the Major Crimes Act of 1885, which makes certain felonies perpetrated by Natives in Native territory punishable under federal law. Not only is Mitchell Navajo, his victims were, too. The crimes also occurred on Navajo land. 

Undoubtedly, the violence Mitchell committed is reprehensible. He participated in the grisly killings of a grandmother and granddaughter. However, Diné (Navajo) spiritual beliefs uphold the sanctity of life, so the Navajo are culturally opposed to the death penalty. The Federal Death Penalty Act of 1994 provided tribes with the ability to opt in to the death penalty, allowing the federal government to execute tribal members who are convicted of federal crimes that qualify, with the consent of that tribe. The Navajo Nation never opted in to allow the execution of its members. In fact, the Navajo Public Safety Committee went on record rejecting the federal death penalty in 2004. For these reasons, a sentence of death in the case of Lezmond Mitchell should be commuted.

The Navajo Nation, which has one of most well established and widely respected tribal legal systems in the United States, is fighting back. The president of the Navajo Nation, Jonathan Nez, planned to appear before the U.S. pardon attorney to advocate on behalf of Mitchell, and wrote a letter to President Trump appealing for executive clemency. In the letter, signed by Nez and Vice President Myron Lizer, the crux of the matter is brought to bear, and the legal gymnastics being used to justify Mitchell’s execution is confronted: 

“The United States’ decision to seek the death penalty against Mr. Mitchell ignored the intent of the tribal opt-in provisions of the Federal Death Penalty Act. Instead the United States included carjacking resulting in death with the crimes charged against Mr. Mitchell. Carjacking resulting in death is a non-Major Crimes Act crime, but which carries the death penalty sentence. Mr. Mitchell is now on death row as a result of a crime that is not included in the crimes associated with Indian Country under the Major Crimes Act, and in complete disregard to the Navajo Nation’s deliberate decision not to opt-in to the death penalty under the Federal Death Penalty Act.”

Yes, you read that right. The U.S. government is putting Lezmond Mitchell to death for carjacking. It’s the only legal justification they could find to do so. 

The president and vice president of the Navajo Nation go on to implore Trump to commute Mitchell’s execution and replace it with a life sentence. Besides honoring Diné religious beliefs, honoring their request would also show respect for the victims’ family members, who do not want him put to death, either. 

Current Navajo leadership is hardly alone in voicing opposition to Mitchell’s death sentence. In 2002, Navajo Attorney General Levon Henry asked the federal government not to seek the death penalty. A subsequent Navajo attorney general, Harrison Tsosie, also requested in 2014 that Mitchell not be executed. 

Mitchell filed a petition for clemency as well. Within, Trump is reminded that the Navajo Nation’s cultural and religious values do not support capital punishment, and that the pertinent events transpired among Navajo tribal members on Navajo land. The petition further delineates the loopholes being used to permit his execution, and quotes the victims’ family members who say they “do not need another murder for our family to heal.” It also indicates that Mitchell was interrogated for 25 days without being given access to legal representation, and that the jury did not hear compelling evidence, like Mitchell being in a drug-induced psychosis when the crimes were committed, that he had no prior criminal history, and his co-defendant, a minor who was the primary assailant, had killed before. 

Some say Attorney General William Barr’s decision to reinstate federal executions is little more than a blood offering meant to energize Trump’s pro-death penalty base—a callous political stunt to make Trump look like a law and order president. Although Mitchell’s death sentence since the passage of the Major Crimes Act is unprecedented, it wouldn’t be the first time Indigenous people have been sacrificed to reinforce colonial conquest and quell the settler masses. 

In 1862, 38 Dakota warriors died in the largest mass hanging in U.S. history in Mankato, Minnesota. The circumstances were vastly different from Mitchell’s. The men hung were not accused of hurting or killing other Dakota. They were part of an uprising against the government that had unilaterally breached their treaty, stolen their land, refused to pay, and was starving them. Some of those hung were innocent of any wrongdoing. One was a case of mistaken identity. Yet like Mitchell, they fell prey to an unjust system that upholds white supremacy.

The Dakota did not receive fair trials. Some could not speak English and were not provided with translators. They lacked legal counsel. They did not receive due process. And like Mitchell, they were executed without the consent of their Native nation. Their lives were also forfeit for political gain, to appease bloodthirsty anti-Native sentiment. 

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. When Crowdog killed Spotted Tail in 1881 after a dispute at the Rosebud Indian Agency on the Great Sioux Reservation, Lakota laws were followed. Crowdog paid restitution to Spotted Tail’s family as directed, but racist locals and federal officials demanded Crowdog’s arrest. The case, referred to as Ex parte Crow Dog, ended up at the U.S. Supreme Court. The Court upheld tribal sovereignty. Congress answered with the Major Crimes Act, putting itself in charge of major felonies perpetrated by Natives on Native land.

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. 

If you are Native and in support of commuting Lezmond Mitchell’s execution to a life sentence without the possibility of release, you can help by signing this letter to Trump. Honor tribal sovereignty, President Trump. Commute the death sentence of Lezmond Mitchell. 

Ruth Hopkins is a Dakota/Lakota Sioux writer and enrolled member of the Sisseton Wahpeton Sioux Tribe. She is also a biologist, tribal attorney, former judge, and co-founder of Lastrealindians.com. Hopkins resides on the Lake Traverse Reservation in South Dakota.