Should A Legal Loophole Allow the Execution of a Native American?
A (Somewhat) Brief Explainer about the Legalities Surrounding the Federal Government’s Planned Execution of Lezmond Mitchell
by Griffin Hardy
[A Note about Terms: The word “Indian” will be used at several points in this article. This should not be construed as an endorsement of that terminology. Federal law refers to “Indians,” “Indian tribes,” and “Indian Country” in almost every statute related to the federal-tribal relationship. The word holds a particular legal meaning and is used here as a legal term of art when referencing these laws — nothing more.]
The federal government is planning to execute Lezmond Mitchell, a member of the Navajo Nation, on August 26th. Mitchell was convicted of killing fellow tribe members Alyce Slim, a 63-year-old grandmother, and Tiffany Lee, Slim’s 9-year-old granddaughter, during a crime spree that spread across a large swath of the 27,000 square-mile Navajo reservation in 2001.
As the execution date approaches, the federal Department of Justice (DOJ) is working hard to shift attention from its gross invasion of the Navajo Nation’s sovereignty by continually bringing up Mitchell’s heinous crimes and the suffering of the victims. We of course mourn the loss of Alyce Slim and Tiffany Lee and stand with their families in their grief. Their deaths were horrendously, unspeakably brutal and there is no denying that Mitchell must be held accountable for his actions. But the DOJ’s insistence that its conveyor belt of executions is about “justice for victims” is once again disproven here because members of the victims’ families do not support the plan to execute Mitchell.
So, what is this execution really about? Like most executions in the United States, there is a political element. It is election season and the incumbent president wants to present himself as “tough on crime” while drawing a distinction between himself and his opponent on this issue. Those of us who know anything about the death penalty are already aware that executions are a sign of weakness, not strength. That concept has not yet reached some voters, although popular support for capital punishment continues to drop year after year.
This execution is about something more, though, and that makes it especially vexing and disturbing. It’s about the federal government running roughshod over tribal sovereignty and disrespecting the culture and values of Native peoples. Under federal law, the government cannot impose the death penalty as a punishment for most crimes committed in Indian Country without the consent of the affected tribe. Here, the Navajo Nation has not consented to the imposition of the death penalty against Lezmond Mitchell. Instead, the federal government found a loophole in the law that allowed it to pursue this execution against the wishes of the Navajo Nation and victims’ family members.
Criminal Jurisdiction in Indian Country
In any discussion about the sovereignty of Native American tribes, it is important to begin with the foundational statement that tribes possess an inherent sovereignty that predates the founding of the United States. Native people were here long before European settlers and organized their societies and governments according to their own customs and practices. Long-standing federal caselaw makes clear that tribes maintain all of their sovereignty unless it was relinquished through a treaty or, controversially, taken away by the U.S. Congress. All of that is to say that Native tribes had authority and jurisdiction over crimes committed on their lands before the U.S. government was formed. Unfortunately, that changed relatively quickly.
One early example of death penalty tensions between a tribe and an American unit of government can be seen in the sad story of Corn Tassel, also known as George Tassels, a Cherokee man who was convicted of murder and sentenced to death by Georgia courts in 1830. Georgia claimed that it had jurisdiction by illegally attempting to annex the Cherokee Nation’s land and calling it “Cherokee County.” The U.S. Supreme Court granted a stay of execution, but Georgia disregarded the rule of law and executed Tassel two days later on Christmas Eve. Tassel was dragged out of the jail, forced to sit hogtied in his own coffin, and hanged in front of an audience of 500 people.
In response to the illegal killing of Corn Tassel, the U.S. Supreme Court issued a landmark opinion a few months later in Cherokee Nation v. Georgia. Chief Justice John Marshall wrote that tribes are “domestic dependent nations” and described the tribes as “wards” and the federal government as “guardian.” In combination with the later decision in Worcester v. Georgia, this meant that tribes were free of state attempts to interfere in their governance. The downside was that this left tribes at the will of the federal government — a position that turned out very poorly for Native American people, as history demonstrates.
Armed with power under the doctrine of “trust responsibility,” the federal government quickly set to work at dismantling the authority of tribes to enforce criminal laws and punish wrongdoers. The first blow came in the form of the Indian Country Crimes Act of 1817 (sometimes known as the General Crimes Act). This law gave the federal government jurisdiction to prosecute crimes committed by non-Indians against Indians and “non-major” crimes committed by Indians against non-Indians. The 1817 statute did not give the federal government the right to prosecute crimes committed by Indians against fellow Indians.
It was under this backdrop that another sad story came to pass, albeit with a different outcome than the one that Corn Tassel met some 50 years earlier. In 1881, Crow Dog, a Lakota man, murdered Spotted Tail, a well-respected Lakota chief and uncle of Crazy Horse, on reservation land. The tribal council dealt with the situation according to traditional principles: Crow Dog paid restitution to Spotted Tail’s family in the form of cash, horses, and a blanket. This was not sufficient for the federal government, so Bureau of Indian Affairs agents arrested Crow Dog for the murder. The United States claimed authority to prosecute Crow Dog in federal courts even though the crime was between tribal members and committed on reservation land. Crow Dog was convicted and sentenced to death. He appealed to the U.S. Supreme Court and the conviction was reversed. The Court held in Ex parte Crow Dog that the federal government did not have jurisdiction over Indian-on-Indian crimes committed in Indian Country. Crow Dog was released from prison and returned to his tribe where he lived out the rest of his days.
Congress reacted to the Ex parte Crow Dog swiftly and paternalistically. The Major Crimes Act was passed in 1885, giving the federal government jurisdiction to prosecute certain serious crimes committed in Indian Country by an Indian against another Indian. The list of eligible crimes has expanded over time and today includes 13 separate offenses, the most serious of which is murder. Congressional debate records show that the intent behind this law was very clear. The federal government did not think that tribes should be allowed to settle these types of cases according to their own customs and traditions. Congress believed that it had to be done the American way.
Capital Punishment in Indian Country
The federal government’s authority to prosecute Indians for many crimes committed against other Indians on tribal land does not, at least under modern statutes, extend authority to impose the death penalty. As enacted in 1994, the Federal Death Penalty Act requires the federal government to get express consent from an affected Native American tribe before pursuing the death penalty against a tribal member for a crime committed on tribal lands. This requirement is codified at 18 U.S.C. § 3598.
The tribal consent provision was a bipartisan initiative, largely spearheaded by Democratic Sen. Daniel Inouye from Hawaii and Republican Sen. Pete Domenici from New Mexico. During Senate floor debate in 1991, Sen. Inouye explained the meaning of the provision clearly. Tribes have the same right that state governments have to decide whether the death penalty should apply within their jurisdiction. Sen. Domenici, himself a supporter of capital punishment, made a poignant point: “I believe that you can be for the death penalty and be for something else, and I happen to be for something else, and that happens to be Indian sovereignty and Indian self-determination.” One vehement opponent of the provision was Sen. Strom Thurmond, an avowed segregationist, who said on the Senate floor that everyone should be treated the same for the purposes of the death penalty, “whether they are blacks, they are whites, they are reds, they are tans, or they are Indians.” Recall that this was said not in 1950, but in 1991, and in the well of the United States Senate. Notwithstanding Sen. Thurmond’s comments, the tribal consent provision passed and became law when the Federal Death Penalty Act was signed by President Clinton.
The Federal Government’s Loopholes
The Navajo Nation has never opted into the federal death penalty. In fact, as far as scholars can tell, only one tribe — the Sac and Fox Nation of Oklahoma — has opted in over the 26 years that have passed since the Federal Death Penalty Act was enacted. So, it may seem strange to hear that the federal government is planning to execute Lezmond Mitchell in a few weeks. Recall that Mitchell, a member of the Navajo Nation, murdered Alyce Slim and Tiffany Lee, also both members of the Navajo Nation, on the Navajo reservation. These crimes would seem to fall squarely under the Major Crimes Act, which would in turn trigger the tribal consent provision. Since the Navajo Nation has not opted into the death penalty, the federal government cannot execute Mitchell, right? Unfortunately, and controversially, no.
When Mitchell was arrested and charged with these crimes in federal court, the Navajo Nation made very clear that it did not consent or support capital punishment by sending a letter to the federal prosecutor handling the case, the U.S. Attorney for Arizona. Family members of Alyce Slim and Tiffany Lee also sent letters to the U.S. Attorney indicating that they did not want Mitchell to be executed. The U.S. Attorney told Department of Justice officials in Washington, D.C., that he did not recommend pursuing a death sentence in this case.
Undeterred, then-Attorney General John Ashcroft found a legal loophole that allowed the federal government to pursue the death penalty against the wishes of the Navajo Nation and members of the victims’ families. Capital prosecution under the Major Crimes Act was off the table due to the tribal consent provision, but the DOJ still had a plethora of general criminal statutes that are applicable nationwide, including on tribal lands, to work through. Ashcroft found one that fit the bill in 18 U.S.C. § 2119, which criminalizes carjacking that results in death. Mitchell had commandeered Slim’s pickup truck before killing her and her granddaughter, thus committing a carjacking that resulted in death. This is one of the 44 federal crimes that are considered death-eligible and, because it is not a crime specific to Indian Country, does not require tribal consent before imposing a death sentence.
The federal government’s ongoing end-run around the tribal consent provision is especially problematic in this case due to the conduct of investigators and prosecutors in the early stages of the case. Much of this information was laid out in Judge Stephen Reinhardt’s dissenting opinion when Mitchell appealed his case to the 9th Circuit in 2007. FBI investigators and a federal prosecutor convinced Navajo authorities to arrest Mitchell so that they could interrogate him without the barriers of the federal right to counsel and prompt arraignment. Altogether, the federal officials’ collusive actions kept Mitchell in tribal custody, away from the protection of the federal Constitution, and exposed to repeated interrogation for 25 days. Over those 25 days of repeated interrogation, Mitchell made several incriminating statements without an attorney present that were later used against him at his trial. Federal precedent would have prohibited the government from using any statements made after six hours in custody; Mitchell was in tribal custody for over 600 hours and his statements were used against him anyway.
The federal government found the narrowest possible loophole to impose the death penalty against Mitchell in spite of his tribe’s and the victims’ family members’ vehement opposition. The legal rights and sovereignty of the Navajo Nation were completely disregarded and disrespected. But when government agents needed to find a way to interrogate Mitchell without the protections provided under federal law, they jumped at the chance to use the Navajo legal system to make that happen. The government was glad to use tribal law when it helped build their case but worked all the legal loopholes in federal law when the tribe opposed the government’s death-march.
What Does This All Mean for Abolitionists and Conscientious Citizens?
The circumstances surrounding the planned execution of Lezmond Mitchell are disturbing and showcase some of the many issues around federal-tribal relationships in the United States, especially when it comes to the death penalty. We as abolitionists and conscientious citizens should take action to rectify the wrongs seen here:
(1) Stand with the Victims’ Family Members
We abolitionists are often accused of disrespecting the families of murder victims, but experience tells us that could not be further from the truth. We believe that victims and their families deserve justice and that the death penalty is not a legitimate form of justice. Many of the most important figures in the anti-death penalty movement had family members murdered. Unlike too many prosecutors and politicians, we support victims’ families by working toward a system that provides actual healing, not the empty promise of an execution. By voicing our opposition to the execution of Lezmond Mitchell, we stand with the victims’ family members as they have made their position known for almost 20 years.
(2) Push to Strengthen the Tribal Consent Provision
The tribal consent provision is all but meaningless if the federal government can get around it this easily. The best solution is to abolish the federal death penalty, but until that happens, we should push to strengthen the provision and close the loopholes that allowed Mitchell to be put on death row. Tribal consent should be required for all capital prosecutions in Indian Country, not just those crimes prosecuted under the Major Crimes Act. Native American tribes are sovereign entities that are different from states — they should be able to make a full, complete, and binding decision about the legality of the death penalty in their jurisdiction that cannot be overridden or pre-empted by the federal government.
(3) Reaffirm Tribal Sovereignty
Already, some pro-death penalty commentators are characterizing this case as having occurred in Arizona. That’s just not true and it shows a striking level of ignorance and/or disrespect for the sovereign status of Indian tribes. The Navajo Nation is not in Arizona. It is its own jurisdiction with its own president, legislature, court system, police force, park system, and other hallmarks of an independent government. The Navajo Nation’s territory is about the same size as the state of West Virginia. The federal government should not be able to come into Indian Country and impose its own punitive values in contravention of tribal law and customs.
(4) Be Clear About the Actual Crime Lezmond Mitchell Faces Execution for Committing
Media reports and statements from the Department of Justice claim that Mitchell faces execution for killing Alyce Slim and Tiffany Lee. We will repeatedly hear about the horrible, brutal way this woman and girl were murdered. But these were not the actual crimes that Mitchell was sentenced to death for committing. Absent consent from the Navajo Nation, which was not provided, the federal government has no power to execute Mitchell for murdering fellow Navajo Nation citizens on the reservation. Instead, the government is executing Mitchell for carjacking — specifically, a carjacking that resulted in death. If Mitchell had not gotten into Slim’s truck or taken it after the murders, then the government would not be able to execute him. Legally speaking, that is what this execution is actually about.
(5) Promote Alternatives to the Death Penalty and Excessive Punishment that Already Exist in Indian Country
Native American tribes, and the Navajo Nation in particular, are well-known for their restorative justice systems and peacemaking processes. In 2008, the Navajo Nation, Hopi Tribe, and Fort McDowell Yavapai Nation offered a definition for what restorative justice means in their communities: “Wrongdoers, those who are harmed, and their affected communities are engaged in search of solutions that promote repair and rebuilding. Convictions, detention, and penalties in support of personal responsibility and community safety are not excluded.” The Navajo Nation is a pioneer in the use of restorative justice, having started its Peacemaking Program through the Navajo courts in 1982. Alternative and traditional dispute resolution options must be offered in the Navajo legal system in line with requirements set out by the Navajo Supreme Court in 2011. The goal is to facilitate decision-making about the outcome of a dispute between the parties themselves. We should promote these options as aspirational alternatives to the harsh, punitive nature of our American criminal-legal system.
(6) Join the campaign to end the federal death penalty. Learn more here.
Griffin Hardy is a member of Death Penalty Action’s Advisory Board, serves as Communications Manager for Sister Helen Prejean, and graduated from the University of Michigan Law School. He is based in Albuquerque, New Mexico.