Rethinking the Legality of the Death Penalty on Sovereign Native American Nations

The legality and morality of the United States death penalty is already a hot-button issue, but it is further complicated when applied to other sovereign nations, including Native American tribes with independent tribal governments. The constant struggle over jurisdictional boundaries between Native American tribes and the US federal government has caused controversy over whether the US has the legal jurisdiction to execute a tribal citizen convicted of a crime committed against another tribal member on tribal land. Lezmond Mitchell was put to death by lethal injection on August 26, 2020 in Terre Haute Federal Prison, marking the execution of the only Native American on Federal Death Row in the United States. The legal choice to enact the death penalty on Mr. Mitchell of the Navajo Nation highlights the courts disregard of two binding federal statutes: the Major Crimes Act (18 U.S.C. § 1153) and the Federal Enclave Act (18 U.S.C. § 1152). In addition, under the Federal Death Penalty Act of 1994 (18 U.S.C. § 3598), the United States did not have the jurisdiction to sentence Lezmond Mitchell to the death penalty.

Historically, the United States and Native American nations have battled over sovereignty and judicial boundaries, ultimately leading to the establishment of the Indian Major Crimes Act. In Ex Parte Crow Dog of 1883, Crow Dog was released after filing a habeas corpus petition to the Supreme Court regarding his murder of another Native American on a reservation. [1] The Supreme Court ruled that the United States did not have jurisdiction to convict a crime between two Native Americans, but, given the mild punishments imposed upon Crow Dog by the Native American government, there was public disapproval by white Americans. In response to Ex Parte Crow Dog, the United States enacted the The Major Crimes Act (18 U.S.C. § 1153). [2] This law made any Indian who committed one of the fourteen enumerated crimes (notably murder, manslaughter, and an assault against an individual who has not attained the age of sixteen years) are “subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” [3] The Indian Major Crimes Act means that the United States maintains jurisdiction over these fourteen crimes even when they occur between two Native American tribal members on Native land. [4]

Following the Indian Major Crimes Act, in the case of United States v. Mitchell, Lezmond Mitchell was convicted of carjacking resulting in death (18 U.S.C. § 2119), which is not an offense enumerated in the act, and first degree murder (18 U.S.C. §§ 1111, 1153), which is enumerated in the Major Crimes Act. [5] Although Mr. Mitchell did commit both of these crimes, the US Federal Court did not have the jurisdiction to convict him of carjacking resulting in death because, under Ex Parte Crow Dog and the Major Crimes Act, the federal government only has the right to prosecute tribal members for crimes committed against other tribal members on tribal land if the crime is one of the Major Crimes Act’s fourteen enumerated offenses. [6] Further, the law states that if there is proof that “the application of the law to the tribe would ‘abrogate rights guaranteed by Indian treaties’” then the conviction under the Major Crimes Act is unlawful. Mr. Mitchell’s case affirms this stipulation given the carjacking is not under the federal government's jurisdiction, hence, the tribe’s sovereignty and rights are threatened. [7] While the first degree murder conviction falls under this standard, the carjacking conviction does not; based on this fact, Mr. Mitchell’s carjacking conviction should not have been upheld. 

The legality is further complicated by the Federal Enclave Act (18 U.S.C § 1152), enacted in 1994. This law states the “‘general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia” applies to Indian country as well. [8] There is, however, a major stipulation that is directly relevant to Lezmond Mitchell’s case — the law does not apply “to offenses committed by one Indian against the person or property of another Indian.” [9] Not only were Mitchell’s victims Native American, but the crime took place in Sawmill, Arizona, which is part of the Navajo Nation, meaning that the crime did not occur on United States land. [10] Therefore, the Federal Enclave Act does not give the United States the jurisdiction to try Mitchell’s case, as it should be governed by tribal law. 

The enactment of the Federal Enclave Act (18 U.S.C § 1152) complicates the precedent of the Indian Major Crimes Act and expands the jurisdiction of the US Federal Government beyond just the fourteen crimes stated in the Indian Major Crimes Act. There is no concurrent jurisdiction outlined by the Ninth Circuit Court and in the case of Mr. Mitchell the two precedents lead to conflicting outcomes when it comes to the jurisdiction of trying the case. 

Given Mr. Mitchell’s first-degree murder and carjacking resulting in death convictions remain standing, however, we must analyze whether the federal government ultimately had the authority to sentence Mr. Mitchell to death. The legality of the death penalty in Lezmond Mitchell’s case is further complicated by the application of the Federal Death Penalty Act of 1994. This law “established constitutional procedures for imposition of the death penalty for 60 offenses under 13 existing and 28 newly-created Federal capital statutes.” [11] As mentioned previously, carjacking resulting in death is not enumerated by the Indian Major Crimes Act; thus, Mr. Mitchell cannot be sentenced to death for a crime that is not under the jurisdiction of the United States in the first place. This is notable because he ultimately was given the death penalty on the basis of the carjacking resulting in death conviction, therefore, even though he would be sentenced under the murder conviction he would not have received the death penalty.

The Federal Death Penalty Act “Special Provisions for Indian Country” further specifies no Native American belonging to a tribe can be subject to a capital sentence when the crime “has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.” [12] In the case of Lezmond Mitchell, the Navajo Nation strongly declined the death penalty, as it is contrary to their moral beliefs. The Navajo Nation President wrote: “We strongly hold to our cultural, traditional, and religious beliefs that life is sacred.” [13] The court argued that the “ideological opposition to the death penalty by its own force [should not exempt] tribal members from the reach of federal criminal laws, or override the presumption that federal criminal laws of nationwide applicability apply to Indian tribes.” [14] This claim violates Federal Death Penalty Act’s explicit provision that the tribal members have the ultimate authority over the implementation of the death penalty. Therefore, regardless of the reasoning behind the tribe’s decision to forego the death penalty, in order to maintain their sovereignty and authority over death penalty decisions, Mr. Mitchell should not have been sentenced. 

Lezmond Mitchell’s death penalty case highlights the disjunction between statutes surrounding the sovereignty of Native Americans under United States law. When the Major Crimes Act and the Federal Enclave Act are viewed in tandem, there is ambiguity about the extent of federal jurisdiction. The controversy over the legality of Lezmond’s sentence is therefore heightened, but I assert the United States should not have been able to convict Mitchell because of the pattern of laws that exist to enforce and uphold the sovereignty of the Native nations. Further, in light of the Federal Death Penalty Act, Lezmond Mitchell’s federal death row execution was clearly illegal and should not have held up in a court of law. 

[1] Baker, David V. “‘American Indian Executions in Historical Context’, Criminal Justice Studies.” Routledge. Accessed March 3, 2021. https://doi.org/10.1080/14786010701758138.

[2] “Offense Committed Within Indian Country,” 18 U.S.C § 1153.

[3] Ibid.

[4] The Major Crimes Act, 18 U.S.C. § 1153.

[5] United States v. Mitchell, No. 03-99010 (United States Court of Appeals, Ninth Circuit September 5, 2007).

[6] The Major Crimes Act, 18 U.S.C. § 1153.

[7] United States v. Mitchell, No. 03-99010.

[8] The General Crimes Act, 18 U.S.C. § 1152.

[9] Ibid.

[10] United States v. Mitchell, No. 03-99010.

[11] The Federal Death Penalty Act of 1994, Title VI, Sections 60001-26, Sept. 13, 1994, 108 Stat.

[12] “Special Provisions for Indian Country,” 18 U.S. Code § 3598.

[13] Camila Domonoske, “Navajo Nation Asks Trump To Commute Death Sentence Of Native Man Facing Execution,” National Public Radio, 8/11/2020, https://www.npr.org/2020/08/11/901337273/navajo-nation-asks-trump-to-commute-death-sentence-of-native-man-facing-executio.

[14] United States v. Mitchell, No. 03-99010.