S. Frank Thompson: I know what it’s like to carry out executions
In 1994, Congress amended federal law to prohibit the death penalty for crimes on tribal land that are prosecuted under the Major Crimes Act unless the affected tribe has decided to allow it. The amendment was designed to prevent federal prosecutors from seeking the death penalty over tribal objections. As the Ninth Circuit pointed out in a recent decision in Mitchell’s case, the law served to place tribes on the same footing as states, whose residents cannot be put to death without their state’s consent. Federal prosecutors traditionally do not disrespect a state’s policy choices when it comes to crimes committed within that state’s jurisdiction. But in Mitchell’s case, the government did exactly that—circumventing and disrespecting tribal sovereignty at will.
At the time of Mitchell’s prosecution, the Department of Justice under Attorney General John Ashcroft was aggressively prosecuting crimes and seeking the toughest punishments possible, including the death penalty. The 1994 Death Penalty Act, passed the same year as the amendment requiring tribal consent under the Major Crimes Act, significantly expanded the number of federal crimes for which a person could receive a death sentence. One of those crimes was “carjacking resulting in death.” It was this law that Mitchell was charged under, allowing prosecutors to skirt the requirements of the Major Crimes Act.
In response to the Mitchell case, the Navajo Nation held public hearings to decide whether to support or oppose the death penalty. In one hearing, Marlene Slim, the daughter of one victim and mother of the other, passionately stated her opposition to the death penalty. Ultimately, the Navajo Nation objected to the United States seeking the death penalty in letters to the U.S. attorney of Arizona. Respecting the tribe’s judgment and Slim’s wishes, the U.S. attorney initially agreed not to seek capital punishment. Despite all of this, Ashcroft’s Justice Department brought carjacking charges against Mitchell, clearing the way for a capital prosecution. This decision made clear that the Justice Department didn’t care much for Congress’s judgment that Native tribes should have a say in whether their citizens are executed by the federal government.
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Many Native Americans were upset, but not surprised. The federal government’s lengthy history of executing tribal members has shaped the contours of Indian Country criminal jurisdiction. In 1862, for example, President Abraham Lincoln’s administration hanged 38 Dakota prisoners of war in the largest mass execution in American history. The Major Crimes Act itself derived from the federal government’s demand for power to execute Native Americans: In the famed 1883 case of the Lower Brulé Lakota leader Crow Dog, charged by the United States with capital murder for killing Spotted Tail, another tribal leader, the Supreme Court held that the United States had no authority to prosecute Indian-on-Indian crimes committed in Indian Country. The attorney general demanded that power from Congress and got it with the Major Crimes Act.