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Excerpted From: Mary Margaret L. Kirchner, The Execution of Lezmond Mitchell: an Analysis of Federal Indian Law, Criminal Jurisdiction, and the Death Penalty as Applied to Native Americans, 25 Lewis & Clark Law Review 649 (2021) (Note and Comment) (347 Footnotes) (Full Document)


nativeamericantribesIn the United States, criminal defendants who are charged with first-degree murder or aggravated murder may be sentenced to death. Some may argue that the United States is trending towards abolishing the death penalty as 26 states have either stayed executions or have abolished the death penalty. The death penalty is not a form of punishment unique to the states. The Federal Death Penalty Act authorizes the federal government to use the death penalty as a form of punishment for certain federal crimes. From 1988, when the federal death penalty was reinstated, to 2003, only three federal death row inmates had been executed. No federal death row inmate had been executed since 2003; however, this changed under the Trump Administration when the federal government scheduled three executions to be held in December 2019. Since Attorney General Barr's announcement, 13 death row inmates have been executed, meaning that 2020-2021 saw the largest number of inmates executed by the federal government since 1896. Though the federal government has recently executed more people than it has in the past 124 years, the approach to the death penalty is in a period of change due to the juxtaposition between more states reviewing and abolishing the death penalty and the federal government under the Trump Administration enforcing death sentences by executing 13 inmates. Moreover, the unethical nature of the death penalty, its inherent inequality, its immorality, as well as international pressures regarding the death penalty, have resulted in the death penalty being viewed as draconian, outdated, and unjust.

U.S. citizens and members of Native American tribes may be sentenced under the Federal Death Penalty Act. Pursuant to the Federal Death Penalty Act, federally recognized Native American tribes must consent to the death penalty being applied to its tribal members as a possible criminal sentence. Inherent in the relationship between the federal government, tribes, and the laws governing tribal sovereignty, there is a complex web detailing when the tribe or the federal government has criminal jurisdiction over a tribal member. There are loopholes in federal law, however, to work around this provision. Specifically, the announcement by Attorney General William Barr resulted in the execution of Lezmond Mitchell, the only Native American on federal death row, which elucidates the federal government's use of these loopholes to execute a tribal member.

This Comment explores the current nature of the federal death penalty as applied to Native Americans to understand how the executive decision by Attorney General Barr could affect Native Americans who might be sentenced to death row in the future and how this decision affected Lezmond Mitchell. Specifically, this Comment investigates the relationship between the federal government and tribal governments regarding criminal jurisdiction and the possible sentence of death for Native Americans. This Comment explores the systemic intrusions on tribal criminal sovereignty and the loopholes enacted by the federal government to restrict when tribes may practice their criminal jurisdiction.

Section II of this Comment summarizes the history of the death penalty in the United States. Monumental cases like Furman v. Georgia and Gregg v. Georgia are explored to understand the modern framework of capital punishment in the United States as well as judicial precedents from more recent cases. Section II also discusses changes since the Gregg decision, which reflect society's evolving standards of decency.

Section III summarizes key issues with the death penalty today, and specifically looks at international norms, wrongful convictions, the inequality and disproportionality of the death penalty, the effectiveness of the death penalty, and the implications of the COVID-19 pandemic on the death penalty.

Section IV details Attorney General Barr's July 2019 decision and his subsequent decisions to expand executions to additional inmates.

Section V explores the history of tribal sovereignty, the framework in which Congress may pass laws affecting the tribes, the history of tribal criminal jurisdiction, and the relationship with the United States regarding criminal jurisdiction.

Section VI examines the Federal Death Penalty Act, tribal consent to the death penalty for their members, and the loophole that was the catalyst for Lezmond Mitchell's execution.

Section VII discusses the effort to stay Mitchell's execution and his eventual execution on August 26, 2020.

[. . .]

Throughout the years, tribes have had their criminal jurisdiction slowly chipped away. Laws like the Major Crimes Act and Public Law 280 have infringed on tribal jurisdiction by giving other sovereigns, either the state or the federal government, the power to prosecute Native Americans. Cases like Oliphant have stripped away tribal jurisdiction by prohibiting tribes from prosecuting non-Native Americans for crimes that happen on tribal land. In the instances where tribes have been granted the power to have more control over their people, through the “opt in” option in the Federal Death Penalty Act, there have been loopholes poked through that make it so Native Americans can still face the death penalty. It is as a result of these loopholes that Navajo Nation member, Lezmond Mitchell, was executed. His execution symbolizes another instance where the federal government has stripped Native American tribes of their sovereignty and imposed its own will. Mitchell's execution serves as another example of the death penalty being unequally applied to people of color and to defendants that are not the most culpable defendants in their case. Mitchell's execution is also an example of the federal government's long history of broken promises to the tribes that highlights the significant erosion of tribal criminal jurisdiction. As Judge Morgan Christen on the Ninth Circuit wrote, “The United States made an express commitment to tribal sovereignty when it enacted the tribal option .... And by seeking the death penalty in this case, the United States walked away from that commitment.”

Mary Margaret (Meggie) Kirchner, J.D., graduated Lewis & Clark Law School in 2021 with a specialization in Criminal Law & Justice.

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