Carl Slater: Lezmond Mitchell’s death sentence is an affront to the Navajo people

(Felicia Fonseca | AP file photo) In this Jan. 15, 2019, photo, Jonathan Nez addresses a crowd after he was sworn in as president of the Navajo Nation in Fort Defiance, Arizona. Nez has asked President Donald Trump to commute the death sentence of fellow tribe member Lezmond Mitchell to life in prison. Nez cited the tribe's longstanding opposition to the death penalty in a July 31 letter to Trump. Mitchell is scheduled to be executed on Aug. 26.

On Aug. 26, the federal government plans to execute Lezmond Mitchell, 38, the only American Indian under a federal death sentence. This a profound insult to Navajo sovereignty. I am a leader of the Navajo Nation, and along with its president, vice president and legislative branch, I call on President Donald Trump to commute his sentence to life imprisonment without the possibility of release.

In 2001, 20-year-old Lezmond Mitchell and a juvenile co-defendant, both Navajo citizens, were charged with killing a woman and her granddaughter, both Navajo people. The federal government prosecuted this crime in the District Court in Arizona. Although the prosecutor acknowledged the co-defendant was the primary assailant, he was under 18 at the time of the crime and ineligible for a death sentence. Mitchell, barely out of his teens, became the focus for then-Attorney General John Ashcroft’s desire to prosecute this case as a capital crime.

However, Ashcroft faced a major impediment. Under the Federal Death Penalty Act, the federal government promised that it would not seek the death penalty against American Indians who committed crimes against other American Indians on tribal land unless the tribe agreed. The Navajo Nation opposes capital punishment for all of its people, including Mitchell.

On at least three separate occasions, the Nation formally petitioned the federal government not to subject Mitchell to a death sentence. The woman who is the daughter and mother of the victims, a Navajo citizen, also asked the government not to pursue a death sentence. And even the local U.S. attorney’s office opposed the capital prosecution of Mitchell out of respect for the position of the Navajo government.

But the government found a workaround. It prosecuted Mitchell for carjacking resulting in death, a crime of general federal jurisdiction for which tribal consent was not required.

This case remains the only time in the history of the modern death penalty that the federal government has sought capital punishment over tribal objection for a crime committed on tribal land. There have been at least 20 other instances of murder on tribal land in which the Justice Department considered a capital prosecution, but did not pursue a death sentence, apparently based on the tribe’s opposition to capital punishment. In virtually all of these cases, the government could have circumvented the tribes’ viewpoints by seeking death for general federal jurisdiction crimes, as it did in Mitchell’s case. Instead, the federal government abided by the promise it made to American Indians and honored the tribe’s sovereign views.

Mitchell’s case offends tribal sovereignty for other reasons. After his arrest, the government abused the tribal court system in order to deny Mitchell his federal due process rights. Mitchell was held in a tribal jail for 25 days, without access to a lawyer, while the FBI continually interrogated him. It was only after the FBI allegedly obtained a full confession that Mitchell was brought to federal court, presented to a magistrate and appointed counsel. The FBI did not tape-record Mitchell’s alleged confession, nor did it allow him to write a statement in his own hand. In fact, in his only recorded statement, Mitchell denied having a direct role in the capital offenses. Were Mitchell a non-Indian, the federal government would not have been permitted to use these alleged confessions against him.

There are also strong indications that federal prosecutors worked to keep Native American people off Mitchell’s jury and played to anti-Indian biases during the trial. Mitchell’s lawyers have sought for years to investigate these issues, but the federal courts refuse to allow them to interview the jurors. If Mitchell was not an Indian, I strongly doubt he would be facing the death penalty today.

While the crime for which Mitchell was convicted was brutal, his more culpable co-defendant received a life sentence for the same offense. And Mitchell’s tragic life story is all too familiar to Native Americans. He grew up in a home rife with intergenerational trauma of abuse, addiction and mental illness. His jury was told almost nothing about his background or the fact that at the time of the crime, he had been awake for several days bingeing on drugs and alcohol to such an extent that, according to a board-certified psychiatrist, he was likely psychotic when the homicides occurred.

In the origin story of the Diné, or Navajo, we traveled to three different worlds before settling in this one, which is called the fourth, or glittering, world, in an area that is now northwestern New Mexico. Long before the Spanish, Mexican, then American settlers arrived, we flourished in our rugged, high desert homelands, living according to our traditions and ceremonies. Since 1868, when we signed our final treaty with the United States and were allowed to return to our homes from an internment camp hundreds of miles away, the United States has recognized our right to practice self-government, including handling many intra-Indian criminal matters.

Just a few weeks ago, the Supreme Court issued a decision acknowledging and reaffirming the sovereignty of tribal nations in Oklahoma. The United States is taking stock of its history of racial injustice, including the many traumas perpetrated against American Indians. To carry out Lezmond Mitchell’s execution, despite the profound infringement on tribal sovereignty that his case represents, would be a grave injustice.

Carl Slater is a delegate to the Navajo Nation Council.