Strapping Tribal Sovereignty into the Electric Chair: Federal Government Executes Convicted Navajo Man Despite Navajo Nation’s Plea Against the Death Penalty

By Jens Camp

In the midst of the Kenosha Shooting [1] and the Republican National Convention, the federal government was moving forward with its plans to execute Lezmond Mitchell, a member of the Navajo Nation and the only Native American man on federal death row. [2] On August 26^th, 2020 the federal government executed Lezmond “against the wishes of Navajo leaders and hundreds of Native American citizens who called for President Trump to spare his life.” [3] 

The problem with the Lezmond execution, depending on one’s opinions regarding the death penalty, was not necessarily the severity of the punishment for his criminal actions—he was convicted for murdering a grandmother, Alyce Slim, and her 9-year-old granddaughter, Tiffany Lee, in a carjacking incident that went wrong. [4] Instead, the injustice here stems from the Department of Justice’s exploitation of a loophole in the law to disregard tribal sovereignty to give him the death penalty. [5] Under the Federal Death Penalty Act of 1994, “the federal government must give tribal nations the authority to opt in to the federal death penalty for crimes committed on tribal lands, including murder under the Major Crimes Act. [6] In this instance, Mr. Mitchell’s tribe, the Navajo Nation, opted out of the death penalty. [7] To contravene the Navajo Nation’s wishes, the federal government “charged Mr. Mitchell with carjacking resulting in death, under a federal statute of general applicability….” [8] 

Since the federal government first requested that Mr. Mitchell be given the death penalty in 2002, the Navajo Nation has repeatedly requested for the federal government to commute his sentence to life in prison. [9] Other tribes and tribal advocacy groups have also requested that the federal government commute his sentence. [10] Of all these requests, perhaps the most convincing, and heart wrenching, plea for Mr. Mitchell’s life came from Levon Henry, Attorney General of the Navajo Nation, who claimed that the death penalty stands at odds with Navajo culture, explaining:

Our culture and tradition teach us to value life and instruct against the taking of human life for vengeance… Committing a crime not only disrupts the harmony of the community.  The capital punishment sentence removes… any possibility of restoring the harmony in a society.

[11].  On August 26, 2020, the President of the United States, Donald Trump, disregarded these pleas and permitted the death of both a man and the sanctity of the government-to-government relationship with tribes.  President Trump and the federal government “remove[d]… any possibility of restoring the harmony in… society.” [12]

[1] Robert Klemko & Greg Jaffe, A Mentally Ill Man, a Heavily Armed Teenager and the Night Kenosha Burned, Wash. Post (Oct. 3, 2020), https://www.washingtonpost.com/nation/2020/10/03/kenosha-shooting-victims/?arc404=true.

[2] Jessica Schneider, US Government Executes Only Native American on Death Row, Despite Calls from Tribal Leaders to the President for Clemency, CNN (Aug. 26, 2020), https://www.cnn.com/2020/08/26/politics/lezmond-mitchell-native-american-execution-supreme-court/index.html.

[3] Hailey Fuchs, Justice Dept. Executes Native American Man Convicted of Murder, N.Y. Times (Aug. 26, 2020), https://www.nytimes.com/2020/08/26/us/politics/lezmond-mitchell-executed.html.

[4] Id.  However, Mitchell’s defense attorneys, Jonathan Aminoff and Celeste Bacchi, have contested that he may have been subject to an impartial jury because the jurors at his trial were composed of 11 white people and a single Navajo…” and that federal prosecutors may have played into any such biases by “ma[king] arguments laced with anti-Indian stereotypes. See Attorneys Statement Regarding the Execution of Lezmond Mitchell, Turtle Talk Blog (Aug. 27, 2020), https://turtletalk.blog/2020/08/27/attorney-statement-regarding-the-execution-of-lezmond-mitchell/.

[5] See Fuchs, supra note 3.

[6] Letter from Fawn Sharp, National Congress of American Indians President, to Donald Trump, President of the United States (Aug. 18, 2020) (on file with the author).  For those that are unfamiliar, the Major Crimes Act gives the federal government jurisdiction to prosecute Indians for committing certain crimes, including murder, on Indian lands. 18 U.S.C. § 1153.

[7] Fuchs, supra note 3.

[8] Sharp, supra note 6.

[9] Fuchs, supra note 3.

[10] Sharp, supra note 6.

[11] Sharp, supra note 6 (quoting statement from Levon Henry, Attorney General of the Navajo Nation).

[12] Sharp, supra note 6 (quoting statement from Levon Henry, Attorney General of the Navajo Nation).