The Only Native American on Death Row Was Just Executed Without His Tribe's Consent

For 17 years, the Navajo Nation and the victim’s family have publicly objected to Lezmond Mitchell’s sentence.
August 27, 2020, 3:00pm
Auska Mitchell holds a photograph of his nephew, Lezmond Mitchell, on Friday, Aug. 21, 2020, in the Phoenix area. (AP Photo/Jonathan J. Cooper)

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Lezmond Mitchell, the only native American on death row in the U.S., was just executed — despite nearly two decades of objections from the Navajo Nation. Experts say it’s the first time in modern history the U.S. has put a Nativen American to death without the consent of their tribe. 

Mitchell, 38, was convicted and sentenced to death in 2003 for the murder of a 63-year-old woman and her 9-year-old granddaughter in Arizona two years prior. Nearly 19 years after he committed the crime, Mitchell was given a lethal injection of pentobarbital and declared dead at 6:30 p.m. Wednesday. 

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For 17 years, however, the Navajo Nation and the victim’s family have publicly objected to Mitchell’s sentence — as many native tribes oppose the death penalty — and instead favored life in prison as punishment. But all their efforts to halt the execution, including a last minute request to the U.S. Supreme Court for a stay of execution, failed. The decision broke from decades of the federal government forgoing capital punishment in respect of the tribal sovereignty of native governments like the Navajo Nation.

“This is the first native American since 1939 that is facing execution by the federal government,” McBride said. “There have been at least 20 other cases in recent decades that have occurred on Indian country, where there was murder involved and the federal government chose not to pursue the death penalty because of the expressed desire of the tribes.” 

In 1994, Congress passed landmark legislation that determined the U.S. government would need to get consent from a criminal’s tribe to execute them if the crime occurred in native territory.  But that same year, an expansion of the Major Crimes Act — which gives the U.S. government the power to execute anyone who commits a serious felony — voided those protections, according to Mike McBride, a Native American Law Attorney based out of Tulsa. 

In Mitchell’s case, one of his crimes fell under the exceptions.

“While Mitchell was charged with murder, he was also charged with ‘carjacking resulting in death,’” McBride told VICE News. “That is a general and federal crime that is not dependant upon happening on Indian country. And because the punishment for that crime is not dependant upon happening on Indian country, the U.S. did not have to consult with the tribe to pursue the death penalty.”

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Only one native tribe, the Sac And Fox Nation of Oklahoma, has given the U.S. government the freedom to sentence one of their own through legislation according to McBride. But so far, no Sac and Fox tribesperson has been executed.

On the other hand, every court willing to hear Mitchell’s case, from the federal District Court in Arizona to the Ninth Circuit Court of Appeals, determined that the U.S. government had the right to execute Mitchell under the technicality of his crime. 

In the final hours before Mitchell is slated to be killed, his legal team hoped for a stay of execution from President Trump. But according to McBride, Attorney General William Barr’s previous opposition to amending the Major Crimes Act in the early ‘90s didn’t bode well. 

“The same William Barr that is Attorney General right now was attorney general at that time, under George H.W. Bush,” he said. “And at that time the presidential administration through William Barr opposed exempting tribal reservations from the death penalty.”'

Mitchell’s execution comes nearly two months after the U.S. Supreme Court determined that a large portion of eastern Oklahoma including most of the state’s second largest city Tulsa, is actually Muscogee Native territory, The 5-4 decision will likely change which entities are responsible for carrying out criminal justice, including the death penalty, for native people living in these parts of the state.