The Atlantic

Imagine you live in a state where the death penalty for serious crimes is prohibited. Imagine you are accused of a serious crime against another resident of your state, but your trial is moved to a state where the government can seek the death penalty. Over your objections, the objections of the victim’s family, the objections of your home state, and even the objections of the original prosecutor, you are tried, convicted, and sentenced to death by the foreign jurisdiction.

This would plainly be an inappropriate act by any government, but the federal government is doing this with a Native American offender.

Lezmond Mitchell is a citizen of the Navajo Nation who is scheduled for execution by the United States on August 26. He and a juvenile accomplice were convicted of killing two other Navajo Nation citizens during a carjacking in October 2001. Normally, the federal government prosecutes Indian Country murders under the Major Crimes Act, an 1885 law that grants the United States exclusive criminal jurisdiction over serious felonies committed in Indian Country by American Indians. But if the government had charged Mitchell with murder under the Major Crimes Act, it could not have pursued the death penalty against him without the consent of the Navajo Nation. The tribe opposed the death penalty for Mitchell, as did members of the victims’ family. Yet he faces federal execution anyway. How this came to pass is a story about the federal government’s rampant disrespect for tribal sovereignty, a story all too familiar in American history.

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.

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.

In 1991, when Congress first debated the amendment to the Major Crimes Act that would allow tribes to prevent the federal government from seeking the death penalty, it faced active opposition from George H. W. Bush’s administration. The attorney general at that time was none other than Bill Barr, the same attorney general who now seeks to carry out Mitchell’s execution. Then–assistant Attorney General W. Lee Rawls argued that because most of the states where Native Americans lived were death-penalty states, the amended law would create “death-penalty-free zones on Indian reservations.” Of course, that’s what tribal sovereignty means, and that’s exactly what the majority of tribes wanted. Protection from the vicissitudes of federal and state law was what tribes had bargained for and received in treaty negotiations.

A nation’s choice to sentence serious offenders to death is a major indicator of that nation’s cultures and traditions. Like many states, the Navajo Nation refuses to allow its citizens to be executed. Diné laws have never allowed for the death penalty, because tribal members believe only the Creator can address evil actions such as murder. For tribal nations, the death penalty is merely a tool of government-sanctioned revenge, antithetical to Native culture.

Until this summer, the federal government had not executed anyone for nearly two decades. The current administration—including a Justice Department once again helmed by Barr—has chosen to restart the federal machinery of death. Only the president and attorney general want to see Lezmond Mitchell die. The country should respect the wishes of the Navajo Nation and the people closest to this case and commute Mitchell’s death sentence.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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