The Supreme Court on Tuesday night refused to block the execution of a Native American death row inmate whose capital punishment has drawn objections from Navajo tribal leaders.
Lezmond Mitchell, a 38-year-old member of the Navajo Nation, is scheduled to be executed Wednesday evening after his conviction nearly two decades ago for the gruesome double murder of a 63-year-old Native American woman and her granddaughter on Navajo land in Arizona.
The justices’ denial of Mitchell’s bid for reprieve drew no noted dissents, though Justice Sonia Sotomayor said the case underscored the need for the court to bring clarity to a disputed area of law concerning federal executions and states’ rights.
Mitchell is scheduled to be the fourth federal prisoner executed this summer after the Trump administration revived the practice under a new lethal injection protocol following a 17-year hiatus.
The Supreme Court did not directly confront the issues concerning Mitchell’s capital punishment and Native American rights. But lower court judges previously expressed concerns that his prosecution, which was carried out by U.S. Department of Justice (DOJ) attorneys, may represent an unlawful encroachment on tribal sovereignty.
Under a 1994 law, the federal government is required to get a tribe’s permission before it can carry out a death sentence for murder committed by a tribal member on an Indian reservation, as happened in Mitchell’s case. But U.S. prosecutors avoided this requirement by pursuing the death penalty for related crimes Mitchell committed that are not covered under the law.
Navajo members have repeatedly objected to the federal government’s execution of Mitchell.
“As part of Navajo cultural and religious values we do not support the concept of capital punishment. Navajo holds life sacred,” Levon Henry, then-attorney general of the Navajo Nation Department of Justice, wrote in a 2002 letter to U.S. DOJ officials involved in Mitchell’s federal case.
“Our culture and religion teach us to value life and instruct against the taking of human life for vengeance,” he added.
U.S. prosecutors managed to sidestep tribal sovereignty protections by securing a death sentence for Mitchell’s role in the ultimately fatal theft of his victims’ car, a crime that is exempt from the tribal permission requirement.
In an April decision that rejected Mitchell’s appeal on unrelated grounds, Judge Morgan Christen of the 9th Circuit Court of Appeals expressed concerns about U.S. government meddling in tribal matters.
“In my view, it is worth pausing to consider why Mitchell faces the prospect of being the first person to be executed by the federal government for an intra-Indian crime, committed in Indian country, by virtue of a conviction for carjacking resulting in death,” Christen, an Obama appointee, wrote in a concurring opinion.
Carl Slater, a delegate to the Navajo Nation Council, called the impending execution “a profound insult to Navajo sovereignty.”
“Tribal activists have argued that Mr. Mitchell’s case exemplifies the fraught relationship between tribes and federal law enforcement, which often disregards protections for tribal sovereignty,” Slater wrote Tuesday in a New York Times op-ed. “The Justice Department secured Mr. Mitchell’s conviction through a loophole that allowed it to ignore Navajo preferences.”
Mitchell is scheduled to be executed at 6 p.m. at the U.S. Penitentiary in Terre Haute, Ind.