Some people are asking about whether the federal government can legally execute a Native American person for a crime committed against other Native American people on tribal land in light of the recent McGirt decision. McGirt is very new law, but here are a few thoughts:
First, no government (federal, state, or tribal) should ever pursue the death penalty in any case — full stop. Most (if not all) tribal law systems do not have a death penalty. That is true in the Navajo Nation, where the crime in Lezmond Mitchell’s case occurred.
In Lezmond Mitchell’s situation, every part of the case is inextricably linked to the Navajo Nation. Lezmond is a tribal member. The victims were also tribal members. The crime occurred on Navajo land. So why did the federal government take jurisdiction?
The federal government has a shameful, awful history when it comes to tribal relations and criminal jurisdiction. Many Native American tribes have a more restorative system of justice, whereas our federal and state governments are far more retributive.
That conflict between tribal restorative justice and federal retributive justice led to major legal conflicts in the 1880s. In August 1881, Crow Dog, a member of the Lakota Sioux, killed Spotted Tail, a Lakota chief, on tribal land.
The Lakota tribal council dealt with the killing according to Sioux custom and tradition. Crow Dog paid restitution to Spotted Tail’s family. This resolution wasn’t good enough for the federal government. Crow Dog was tried in federal court and sentenced to hang.
In 1883, the U.S. Supreme Court heard Crow Dog’s case. In Ex parte Crow Dog, the Court ruled that the federal government had no authority to try cases that orignated between tribal members on tribal land when the tribal council had already resolved the case.
Congress quickly passed a law called the Major Crimes Act (MCA) in 1885. The MCA granted the federal government exclusive jurisdiction over several crimes if they are committed by a Native American person in Indian Country. One of those enumerated crimes is murder.
The Major Crimes Act was the paternalistic result of a wrong-headed belief that Native American tribes couldn’t handle their own legal affairs. Of course that was wrong. Native Americans had been handling themselves just fine for thousands of years.
The McGirt decision did apply the Major Crimes Act, but it dealt with state jurisdiction over Native Americans on tribal lands — not federal jurisdiction. This planned execution is under federal, not state, jurisdiction.
Traditionally, states don’t have legal jurisdiction in Indian Country because tribal governments function like a separate country in many ways. But the federal government retains this constantly morphing power over tribes called the “trust responsibility.”
So, while McGirt is helpful in its language about the importance of tribal sovereignty and holding the government to its treaty promises, the actual legal rule probably doesn’t apply to executions conducted under federal law.
There are plenty of other legal issues in Lezmond Mitchell’s case. Under the Major Crimes Act, tribes can reject capital punishment even when the federal government has exclusive jurisdiction. This is called the “tribal option” and the Navajo Nation has opted out of executions.
So how did the federal government get a death sentence in the Lezmond Mitchell case after the Navajo Nation rejected capital punishment? Then-AG John Ashcroft brought the charges under a different federal statute that took away the tribe’s right to opt out of the death penalty.
The federal government should not be able to circumvent the tribal option by simply citing a different statute on an indictment form. Even worse, the government tried Lezmond Mitchell in front of a jury of 11 white people and one Navajo person. Hardly a jury of his peers.
Here’s the bottom line. No government (federal or state) should be allowed to come in and pursue the death penalty for a crime that took place on tribal lands and between Native American people. That’s especially true when the tribe has explicitly rejected the death penalty.
This is another shameful chapter in our country’s terrible treatment of Native Americans and constant disrespect for tribal sovereignty. AG Barr and @TheJusticeDept should stop this political charade. The Navajo people — and all Americans — deserve so much better.
