Scheduled Federal Execution of Native American is A Death Warrant for Tribal Sovereignty
By Barbara Creel
Lezmond Mitchell, a Navajo man, born and raised on the Navajo Nation Indian reservation, will die in Terre Haute, Indiana on August 26, if the United States gets its way. Despite the absolute disavowal of the death penalty by his own government, and against the wishes of members of the victims’ family, the United States has sentenced this Navajo man to death — making him the sole American Indian in federal custody on death row and the only indigenous person the federal government has sought to kill since the hanging of Alaska Native George Charles in 1939.
Left unconfronted, meaning without presidential clemency or court intervention, his death sentence, authorized by John Ashcroft, the former U.S. Attorney General and implemented by Bill Barr, in his current position, will be fatal not only for Mr. Mitchell, but also for the hope for healing of a Nation. It represents a death warrant for inherent tribal sovereignty and sacred tribal beliefs.
Thinking the unthinkable
Most people, if they think about death row at all, think of the crime leading to conviction, but not the long path leading to an execution. For Indians that path is steeped in the injustice of settler-colonizers taking over a land not theirs, and imposing a foreign a legal system to control the citizens of separate and sovereign Indian nations.
In Indian country, the path began with a nation-to-nation understanding of comity — the principled recognition of tribal nations as separate sovereigns. Under rules agreed upon during the treaty-making era, the federal government had only limited legal power to prosecute criminal cases under specific trade and intercourse acts or terms of applicable treaties. Tribes handled offenses on the reservation under their own internal law and custom, exercising inherent authority to resolve disputes and sanction transgressors based upon community values, spiritual beliefs, and concepts in existence “since time immemorial.” Trade statute and treaty provisions interacted to uphold internal tribal sovereign authority, as exemplified in the case of Ex parte Kan-gi-shun-ca.
In that case, the United States arrested and prosecuted a member of the Brule Sioux, Kan-gi-shun-ca, for the murder of another Indian on the Great Sioux reservation in the Dakota Territory. He was found guilty of murder and sentenced to death. Kan-gi-shun-ca, though, had already been brought to justice for the same crime under the local law of the tribe. Under Brule tradition, the tribal council met to resolve the murder, ordered an end to the disturbance, and arranged a peaceful reconciliation of the families involved through offered and accepted gifts. This restorative process was just one of the many conflict resolution mechanisms available to the tribal nations to be used even in the most serious of crimes.
In 1883, the U.S. Supreme Court blocked the federal execution of Kan-gi-shun-ca, also known by his English name, Crow Dog. Upon a petition for the writ of habeas corpus, the Supreme Court reversed the federal conviction and threw out the death sentence, holding that the federal government had no jurisdiction over Crow Dog for a crime committed against another Indian within Indian country. The Supreme Court restrained federal power and handed down a victory for native restorative justice and the sovereignty of the Brule and all native nations.
Prior to the Crow Dog decision, federal authorities had officially executed 59 American Indian prisoners by the 1860s. Most of these executions took place in the largest mass execution in the history of the United States. On a single day in December 1862, federal authorities hanged 39 American Indians in direct response to the Dakota-Sioux uprising.
But while Crow Dog represented a victory for tribal sovereignty, the victory was terribly short-lived. Less than two years later, Congress passed the Indian Major Crimes Act of 1885, legislation that allowed Indians to be hauled into federal court for certain serious crimes. Native people, Congress decided, should face the sentence of a “civilized” nation — death.
The Major Crimes Act thus did violence to tribal sovereignty and the rights of Indians. The imposition of the federal death penalty, yoked to the Major Crimes Act, effectively created an “Indian federal death penalty.”
Going over the Mountain
As a Native American woman navigating the rarified air of federal district court, the stark racial impact of the Major Crimes Act struck me deeply. I served as an Assistant Federal Public Defender in Oregon in the late 1990s until 2006. At the time, I was the only Native American federal defender in the district (and very probably in the entire federal public defender system), and it was impossible not to notice Indians prosecuted under the Major Crimes Act.
The federal criminal justice system was not built for me as an advocate, because Indians were only supposed to be the defendants, and then in serious “major” crimes. The system was not built for, nor did it anticipate, my participation. I witnessed first-hand the impact on Native American families and communities of a federal criminal justice system that was not built to address our needs, traditions, values, and interests as either victims or defendants.
On my very first day observing in court, I followed a native woman into the marble lobby of the federal courthouse in downtown Portland, thinking she reminded me of someone back home. We nodded and rode the elevator together in solemn silence. Outside the courtroom, I spoke with a young mother and helped comfort a small, obviously native child who did not want to be there. Not until I stepped inside the courtroom did I notice the faces on either side — prosecution and defense — and realize that I had interacted with both.
On the reservation, someone told me that having your case taken up on federal charges was called “going over the mountain.” The federal prosecution, brought over a hundred miles from the reservation, pitted family and community members against each other in way that afforded neither healing nor resolution to either side. The parties returned home with open wounds.
Every day after that first, I found myself not only identifying with our native clients, but having to explain to others that Native American Indians were so much more than the negative statistics and details of a Major Crimes Act case. The system needed a translator — someone to bring to light the details surrounding the Native American Indian life — family, language, connection to land, community and spirit — details that were remote and understandable, only to those who understand.
It was always about tribal sovereignty
The federal death penalty went into semi-dormancy in the 1970s and 80s, in part, based upon its racist application. Then, in 1994, the same “tough on crime” Congress that passed the now much-reviled Crime Bill, passed the Federal Death Penalty Act (FDPA), expanding the reach of the federal death penalty for certain crimes, including murder under the Major Crimes Act. In doing so, Congress examined the primacy of tribal inherent sovereignty, and weighed the unjust impact of federal criminal law on Native American Indians. Testimony before the Senate showed that without any modification of the law, “70 percent of all death sentences imposed by this law would be imposed upon Indian people,” although American Indians “represent 1.6 percent of all offenders in the United States.”
The late Senator Daniel Inouye of Hawaii sought to address this disparity by proposing a “Tribal Option” allowing federally recognized Indian tribes to choose whether to “opt in” to the death penalty to protect their sovereign voice on who can kill tribal members as punishment. Senator Inouye served as a cultural translator for his colleagues, explaining, “It may be difficult for most Americans to understand that Indian governments are sovereign governments,” but “the most important point to understand about this [option] is that it is premised upon the sovereign status of tribal governments.” Based on his words, the option was added, “[to] accord tribal governments the same right to elect to have the death penalty apply to crimes committed within Indian country . . . consistent with their sovereign status within the Federal system.”
Testifying for the first time on any crime bill, the Navajo Nation leadership opposed the death penalty before Congress during this debate. In the words of Navajo Nation Attorney General Elaine Avalos, “The issue, for the Navajo Nation and other Indian tribes, is not whether the death penalty is good or bad, but whether Indian tribes should have the right to determine for themselves the severity of the punishment for major crimes committed on their reservations.”
Speaking for then Navajo Nation President Peterson Zah, Avalos said, “It is incumbent upon the federal government to allow Indian tribes the choice of whether the death penalty should be extended to our territory.” The death penalty, she explained, is “counter to the cultural beliefs and traditions of the Navajo people who value life and place great emphasis on the restoration of harmony through restitution, individual attention.” It is also ineffective. “Because, the vast majority of major crimes committed on the Navajo Nation and other Indian reservations are precipitated by the abuse of alcohol, . . . the death penalty will not address the root of the problem; rather rehabilitation efforts would be more effective.” The discriminatory effect on American Indians and the “desire to promote Navajo values of alternatives to incarceration,” played a central role.
The ugliness of the death penalty in Indian Country must be confronted along with the unthinkable crime. In Lezmond Mitchell’s case, the Navajo Nation has done just that — impelled itself as a sovereign to look at the details of the crime.
When the federal prosecution of Mr. Mitchell began, the U.S. Department of Justice asked the Navajo Nation for their official position on the death penalty. Despite cultural resistance to speaking of death, the Nation definitively denounced any federal death sentence for Mr. Mitchell. The question was not an abstract one, but was based upon the details of this specific crime. The United States Attorney provided confidential details of the federal investigation and prosecution of Mr. Mitchell and his co-defendants Johnny Orsinger, Jason Kinlicheenie, and Jakegory Nakai for the double-murder in the foothills of the Luckachukai mountains in the northern Navajo Nation reservation.
In a 2002 response, then Navajo Nation Attorney General Levon Henry voiced “the historic position of the Navajo Nation” against “capital punishment for crimes committed on the Navajo Nation under any section of the United States criminal code.”
The words, “under any section” are meaningful. When the Navajo Nation would not “opt in” to the death penalty in Mr. Mitchell’s case, the federal government sought it anyway, using a legal loophole. They charged him with “carjacking resulting in death,” a general-jurisdiction federal crime that did not depend on the offense happening on Navajo land.
Application of the death penalty is the last injustice in this case, but it is not the first. Jurisdictional murkiness and the fact that — under federal law — Native Americans are not guaranteed the right to counsel in all tribal courts, allowed the federal investigators to exploit another legal loophole. After his arrest, Mr. Mitchell remained in Navajo Nation custody for 25 days before being appointed counsel or appearing before a federal judge. During his time in tribal custody, FBI officers repeatedly questioned him, without an attorney, relying on his decision to give statements based upon a “coin toss.” In 2003, Mitchell was not only found guilty of the murders and carjacking, but also sentenced to the death penalty by a predominately white jury. Despite his lack of assistance of counsel, his substantial assistance in the federal prosecution, including leading the feds to the bodies of the victims, and the fact that he had no prior criminal record or history of violence, he was given a far worse sentence than his criminal cohorts, who had committed similar crimes in the past.
The Navajo Nation’s rejection of killing as punishment is not new. It is centered on values that pre-dated the FDPA and this prosecution. But the valid rejection of the death penalty for Lezmond Mitchell was based upon its listening — another tribal value. The Nation’s sovereign voice was based upon a listening session that included wisdom from elders, youth, current and future community leaders, sacred medicine people, religious and secular leaders, and experts from both within and outside the community. The surviving mother and daughter of the victims testified for the report. Despite her despair, the mother to the youngest victim and daughter of the elder, Marlene Slim, traveled from her home on the Navajo Nation reservation to Phoenix, Arizona for the sentencing of Lezmond Mitchell and humbly asked federal prosecutors not to pursue the death penalty.
The Navajo Medicine Men’s Association testified as to intimate and deeply held spiritual beliefs, asking the government to move beyond ideology and politics and questioning the efficacy of secular punishments. They eloquently explained: “Nothing in our traditional laws give us direction and procedures for killing our own as a punishment to correct behavior which is not ours …” and pointed out that “history has indicated [the death penalty] does not work for deterrence or prevention.”
The cultural values of Navajo Nation specifically disavow murder as punishment. No one will be made whole by Mr. Mitchell’s execution. In fact, the express wishes of the Navajo Nation and members of the victims’ family, expressly solicited, have been ignored by federal officials because they do not comport with the government’s plan. Not only does the federal government disrespect the victims’ family and the deeply held values of the survivors, it prevents the community from healing from this crime and creates destruction in its wake. Mr. Mitchell’s sentence is fundamentally, and always has been, about sovereignty. The sovereign voice of the Navajo Nation made clear — No Death Penalty for Lezmond Mitchell.
The heartbreakingly tragic crime that impacted the community was summed up with a cry for rehabilitation and healing from all those intimately involved. A healing still in its infancy nearly two decades later. A healing interrupted forever if marred by the death warrant on Lezmond Mitchell.
And with it, the death of sovereign decision making and sacred healing.
Barbara Creel, an enrolled member of the Pueblo of Jemez, is the Karelitz Professor of Evidence and Procedure, and the former director of the of the Southwest Indian Law Clinic at the University of New Mexico School of Law. She currently directs her own Indigenous Justice Project at the Law School.
