Aug. 26 — A federal judge in Washington, D.C., declined to stay a Wednesday execution in a case that raises questions about tribal sovereignty.
The U.S. District Court for the District of Columbia ruled against attorneys for Lezmond Mitchell, who sought more time while his clemency petition is considered. His lawyers also previously requested two reprieves from the Supreme Court.
Mitchell is hoping to avoid being the first Native American to be put to death by the federal government in the modern era, and the fourth inmate since the United States resumed federal executions last month after a 17-year hiatus.
Mitchell, 37, was sentenced to death for the 2001 murder of two Navajo people — 63-year-old Alyce Slim and her 9-year-old granddaughter, Tiffany Lee — on reservation land. A juvenile accomplice, who was ineligible for the death penalty, pleaded guilty and is serving a life sentence.
Navajo Nation President Jonathan Nez last month asked President Donald Trump to grant Mitchell clemency, citing the tribe’s stance against the death penalty. Navajo leaders argue the U.S. government shouldn’t be able to execute Mitchell.
“The Navajo Nation is respectfully requesting a commutation of the death sentence and the imposition of a life sentence for Mr. Mitchell,” Nez and Navajo Vice President Myron Lizer said in a letter to Trump on July 31.
“This request honors our religious and traditional beliefs, the Navajo Nation’s long-standing position on the death penalty for Native Americans, and our respect for the decision of the victim’s family. … We need to address this issue to move forward in our trust of our federal partners and to continue to work on the importance of protecting our people.”
Under the Federal Death Penalty Act, the U.S. government can’t seek the death penalty for murder committed on tribal land unless said tribe allows it. The U.S. Attorney’s Office in Arizona originally didn’t seek the death penalty for Mitchell, but received pressure from then-Attorney General John Ashcroft to do so.
Defense attorneys Jonathan Aminoff and Celeste Bacchi said that since the Navajo Nation opposed the death penalty in Mitchell’s case, the federal government used a “loophole” to charge him with a lesser crime — carjacking resulting in death. This allowed the government to seek the death penalty without tribal approval.
Lawyers sought stays from the Supreme Court — one to give courts time to consider their claim that they should be able to speak to jurors in Mitchell’s trial about whether racial bias played a part in his conviction, and one to consider a dispute over the interpretation of the Federal Death Penalty Act.
The high court denied both requests late Tuesday. His execution is scheduled for Wednesday night at the federal prison in Terre Haute, Ind.
“Today’s decision means we will never know for sure whether anti-Native American bias influenced the jury’s decision to sentence Lezmond Mitchell to death,” Aminoff and Bacchi said. “Yet we do know that Mr. Mitchell’s death sentence represents an unprecedented infringement on the sovereignty of the Navajo Nation, which has steadfastly opposed his execution.
“Mr. Mitchell’s life is in President Trump’s hands, and we hope the president will demonstrate his respect for tribal sovereignty and grant Mr. Mitchell the mercy of executive clemency.”
If Mitchell’s execution proceeds, he’ll be the fourth person put to death after the resumption of federal executions last month after a 17-year hiatus. The Bureau of Prisons executed three men — Daniel Lewis Lee, Wesley Ira Purkey and Dustin Lee Honken — within a span of a week.
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