Steve August 26, 2020
the-federal-government-killed-a-navajo-man-just-to-prove-it-could

At 6:29 p.m. on Wednesday evening, the United States executed Diné citizen Lezmond Mitchell, the first Native person since 1902 to face the death penalty at the hands of the federal government.

In 2001, Mitchell and a then-underage accomplice and fellow Diné citizen, Johnny Orsinger, stabbed and murdered Alyce Slim and her nine-year-old granddaughter, also both Diné, within the borders of the Navajo Nation in Arizona. The pair were swiftly caught and detained by local authorities after holding up a nearby trading post. A decision then fell before United States federal prosecutors.

As outlined by congressional law, the Federal Bureau of Investigations maintains jurisdiction over Indian Country if the committed crimes fall under those outlined in the 1885 Major Crimes Act. This includes violent crimes such as rape, murder, and kidnapping. But in 2001, then-Attorney General John Ashcroft wasn’t content to charge Mitchell with murder. He wanted the death penalty. But there was a problem: Just as states have the authority to outlaw the death penalty, tribal nations have what is known as the “opt-in” ability, which grants them the right to approve or deny the federal government’s request for crimes covered by the Major Crimes Act. The Navajo Nation rejects capital punishment. So when federal prosecutors went to charge Mitchell and Orsinger—who were easily convicted by a jury made up of 11 white jurors to one Native juror—they used a legal loophole that allowed them to circumvent tribal sovereignty.

Mitchell was not killed by federal authorities on Wednesday evening for committing the crime of murder, though he was convicted on that and several other charges. He was killed, technically, because the U.S. decided to attach capital punishment to his charge of carjacking resulting in death. More to the point, he was killed because both Ashcroft and current Attorney General Bill Barr, who last July restarted federal executions after a two-decade hiatus, dearly wanted to exercise the power to take human life in the misguided name of justice. That this also undermined the sovereignty of the Navajo Nation either didn’t matter or was part of the point to begin with.

The U.S. pursued the death penalty against the objections of then-Navajo Nation Attorney General Levon Henry. The U.S. also ignored then-U.S. attorney for Arizona, Paul Charlton, who agreed that the federal government should listen to the Navajo Nation’s desires. Both Ashcroft and Barr knew what they wanted to see happen, so they flexed every available muscle and pursued every possible loophole. And as it has been so often, the American legal system was twisted against a non-white citizen to exact its pound of flesh.

Much like in the recently decided Supreme Court case McGirt v United States, the issue at hand was never whether Mitchell was guilty of murdering the two members of the Slim family. His guilt there was clear. It is also not a debate of the morality of the U.S. opting to implement the death penalty, at least not directly. Rather, the issue in both cases is a matter of where the crime occurred, the tribal affiliation of both the perpetrators and the victims, and, in the case of Mitchell, whether America actually respects the autonomy of tribal nations’ congressionally enshrined ability to decide whether another government can execute their citizens.

In 1883, the Supreme Court ruled in Ex Parte Crow Dog that the U.S. did not have the authority to step in and adjudicate Native-to-Native crimes committed on tribal lands. The decision angered the then-Attorney General Wayne MacVeagh and Secretary of the Interior Samuel J. Kirkwood, as they had determined two years before that the territorial death penalty could be applied in the case. Crow Dog served as the impetus for Congress’ passing of the Major Crimes Act in 1885, which officially granted the United States federal authorities the aforementioned jurisdiction over violent crimes in Indian Country.

When the constitutionality of the act was challenged in court in U.S. v. Kagama in 1886, the Supreme Court ruled that it was in fact an attempt at protecting Native people from over-zealous juries convened by state-run courts. “Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies,” the court found. “From their very weakness and helplessness, so largely due to the court of dealing of the Federal Government with them and the treaties in which it has been promised, there arises a duty of protection, and with it power.”

Fast forward more than a century to 1994, when Congress passed two crucial pieces of legislation. The first was the Death Penalty Act, which expanded the criminal charges under which the U.S. could pursue capital punishment, including “carjacking resulting in death.” The second was the Violent Crime Control and Law Enforcement Act, which sought, among many things, to update the Major Crimes Act in order to actually grant tribal governments some semblance of power in the federal criminal justice system. The bill established that the federal government could not pursue the death penalty against a tribal citizen without first seeking and securing the approval of the citizen’s government. The idea was to bring tribal nations at least up to the level of state governments, who routinely are allowed to decide whether the death penalty can be attached to federal criminal convictions.

But, as was the case with Mitchell’s execution, America never had any interest in truly hearing out the Navajo Nation. All the way up until Mitchell’s final days, the Navajo government fought the United States’s decision to move forward with the execution. In late July, Navajo Nation President Jonathan Nez sent a letter addressed to U.S. Tweety McTreason, asking him to “consider leniency” for Mitchell. Like almost every tribal nation, the Navajo Nation officially opposes the death penalty on the cultural grounds that life is sacred and is not up to human beings or the government to take it for vengeance. (It is unclear whether Republican Vice President Myron Lizer, who spoke at this week’s Republican National Convention, similarly pushed Trump to stay the execution.) Dozens of other tribes echoed Nez’s call, fearing what this case could portend for their own sovereignty. But Trump did not step in. Neither did the Supreme Court, which on Tuesday night released a statement from Justice Sonya Sotomayor officially denying Mitchell’s petition for a writ of certiorari.

Slightly complicating matters is the fact that members of the Slim family recently issued a statement supporting the execution of Mitchell—initially, court filings revealed that the daughter of Slim and mother of the child “passionately” argued against the death penalty. But as Navajo Nation Council delegate Carl Slater told the Navajo Times on Friday, the matter at hand is not one of whether the victims’s families wishes are being adhered to in terms of the levied justice, but that the nation’s sovereignty was purposefully ignored and diminished by the United States. “The Navajo Nation never opted in to impose the death penalty,” he told the Times. “It is not the decision of one person or one group of family to make the decision.”

Cases like these—ones that are extremely messy, grisly, and entangled in centuries of convoluted federal Indian Law—are the kind that are meant to test both the American legal system and the U.S.’s commitment to tribal sovereignty. It’s a test that the country routinely, often gleefully, fails. It chose vengeance and violence. It opted for a flashy display of what it has decided to define as justice. And it did so against the express wishes of a sovereign nation. The case of Mitchell now stands as a harbinger of future federal action in Indian Country, should the United States federal government continue carrying out death penalty sentences. With Mitchell’s life now stolen by the state, America has tested a new boundary in its historic effort to undermine sovereignty at all turns and at all costs. Now, it knows full well how to kill Native people convicted of crimes on tribal lands, sovereignty be damned.

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