After federal execution, Navajo Nation wants more say over criminal justice matters

(Michael Conroy | AP) Death penalty protestors hold up signs across the street from the federal prison complex in Terre Haute, Ind., Wednesday, Aug. 26, 2020. Lezmond Mitchell, the only Native American on federal death row, was executed Wednesday for the slayings of a 9-year-old and her grandmother nearly two decades ago.

Flagstaff, Ariz. • Shortly after the only Native American man on federal death row took his last breath, his tribe blasted the federal government and accused it of violating the spirit of a law that allows tribes to decide whether to subject their citizens to capital punishment.

Lezmond Mitchell, 38, was executed Wednesday at a federal prison in Indiana where he was being held. The Navajo Nation had asked President Donald Trump to reduce Mitchell’s punishment to life in prison. As the execution neared, Trump took no action and courts declined to intervene.

The Navajo Nation said the situation highlights a need to restore tribes’ ability to determine criminal justice matters on tribal land, especially when it concerns Native victims and Native perpetrators. Jurisdiction now falls to a mix of agencies, including the tribe, that respond depending on the exact location of the crime and who is involved.

“We’re all realizing right now, it’s not enough to try and fix this little piece of the patchwork of justice in Indian Country,” said Navajo Nation Council Delegate Carl Slater. “What we need to do is restore that authority and reaffirm it because it’s every nation’s sovereign right to handle these matters internally.”

Mitchell and a co-defendant were convicted of killing 63-year-old Alyce Slim and her 9-year-old granddaughter, both Navajos, on the tribe’s reservation in 2001 after they hopped into Slim’s pickup truck. The federal government acted within the law when it chose to pursue the death penalty against Mitchell on a charge of carjacking resulting in death. The co-defendant was a juvenile and is serving life in prison.

The carjacking charge falls outside a set of major crimes for which the country’s 574 federally recognized tribes can choose whether the federal government pursues the death penalty. The Navajo Nation didn’t want Mitchell executed, but it didn’t have an avenue to object under the carjacking charge.

Navajo Nation President Jonathan Nez said the tribe’s stance is about sovereignty, while also acknowledging the grisly nature of the crimes and the impact on the families of both the victims and Mitchell.

In a statement Wednesday, Nez asked tribal nations and organizations to join the Navajo Nation in advocating to strengthen tribes’ ability to govern themselves under their own rules.

“We don’t expect federal officials to understand our strongly held traditions of clan relationship, keeping harmony in our communities and holding life sacred,” he wrote. “What we do expect, no, what we demand, is respect for our people, for our tribal nation...”

A U.S. Justice Department spokesperson did not immediately return a request for comment Thursday.

Democratic U.S. Rep. Deb Haaland of New Mexico is among those looking for ways to ensure tribes are respected in their decisions regarding the death penalty.

Federal criminal jurisdiction on tribal land dates back to 1885 and stems from Congress’ displeasure over how one tribal nation settled a killing with restitution to the victim’s family that included money, horses and a blanket.

The federal government has made small strides over the years to restore criminal jurisdiction to tribes. The landmark Tribal Law and Order Act of 2010 expanded the sentencing authority of tribal courts if they meet certain conditions. But a decade later, few tribes have taken advantage of it.

The Violence Against Women Act allowed tribes to prosecute non-Natives for crimes on the reservation in limited circumstances, an authority that was stripped from tribes in a 1978 U.S. Supreme Court decision. But that law also requires reauthorization from Congress.

Tribes have concurrent jurisdiction when crimes involve Native victims and suspects. But tribes overwhelmingly defer to the federal government to prosecute major crimes because the penalties under federal law are more stringent.

Taking on full criminal jurisdiction is an authority that would challenge the resources of most tribes and require an infusion of cash.

“It’s a huge task because the resources have to be there for detention, for defense, for being able to really handle long-term sentences and issues,” said Brent Leonhard, an attorney for the Confederated Tribes of the Umatilla Indian Reservation in Oregon. “Ideally, that’s where we should end up.”

Historically, the Navajo Nation and other tribes have used capital punishment but on their own terms. The Navajo Nation’s formal court system focuses on restorative, rather than punitive justice, using a centuries-old set of traditional laws that guide judges in their decisions.

“We believe that our system, our beliefs in how justice is administered is better for us,” said former Navajo Nation Supreme Court Justice Herb Yazzie. “We resist these attempts to assimilate us into another way of thinking. We will always question them.”