By Stephen Cooper
Amidst the coronavirus devastation, it’s important not to overlook the fact that, at the end of April, two federal appellate judges called out the US government for continuing to dishonor the Navajo Nation – the second-largest Indigenous tribe in America through its pursuit of the death penalty for Lezmond Mitchell.
Judge Morgan Christen of the US Court of Appeals for the Ninth Circuit wrote that the federal government’s insistence that Mitchell, a Navajo, be executed for crimes perpetrated on Navajo victims and Navajo land – against the express wishes of members of the victims’ family and the Navajo Nation – is a “betrayal of a promise made [by the federal government] to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty.”
Christen continued: “People can disagree whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves.”
Judge Andrew Hurwitz, Christen’s colleague, effectively piled on in a separate opinion observing, “that the government had the right to make this decision does not necessarily make it right.” (Interestingly, Hurwitz’s rhetoric is reminiscent of that of Lady Hale of the Supreme Court of the United Kingdom – in a recent significant ruling that Britain cannot provide evidence to the U.S. for use in death penalty cases – in which Hale advanced a truism rarely confessed by a jurist: “What is immoral and unacceptable is not necessarily unlawful.”)
Hurwitz also alludes to the best legal take on Mitchell’s case to date, an opinion by the late Ninth Circuit Judge Stephen Reinhardt in 2015; dubbed the “liberal lion of [the] federal court,” Reinhardt has posthumously been accused of sexual harassment, but his opinion in Mitchell’s case is a must-read for anyone wanting to know the extent of the government’s perfidy in the case of the Navajo Nation on the issue of capital punishment.
Recounting how the so-called “tribal option” was enacted by Congress in 1994, as a “small but important development toward tribal self-determination,” Reinhardt’s opinion detailed how the federal government’s insistence that Mitchell faces the death penalty “reflects a lack of sensitivity to the tribe’s values and autonomy and demonstrates a lack of respect for its status as a sovereign entity.”
Reinhardt highlighted how, in advocating for the tribal option, the Navajo Nation explained to Congress that “‘the death penalty is counter to the cultural beliefs and tradition of the Navajo people who value life.’” Further, Reinhardt pressed, even “Kevin K. Washburn, [then] Assistant Secretary for Indian Affairs for the US Department of the Interior,” wrote that “adoption of the tribal option reflected a ‘modest step’ in favor of a policy that ‘criminal justice in Indian country must be decolonized.’”
Reinhardt’s defense of the tribal option in Mitchell’s case is an oasis of humanity in a desert landscape of legal and other policy decisions in America that have, and still do, dehumanize Indigenous people; examples of this denigration, unfortunately, abound in a nation that honors Christopher Columbus, a wicked man whose conquests resulted in the murder, torture, and enslavement of millions of Indigenous people. (Take, just for example, in 1862, when 38 Dakota men were hanged in the largest mass execution in US history. Or, beginning in 1863 and lasting until 1866, when “more than 10,000 Navajo were marched east” – in what’s bitterly known as the “Long Walk” – before being imprisoned “in squalid conditions [where] [m]any died of starvation and disease.”)
What makes Reinhardt’s, Christen’s, and Hurwitz’s actions so extraordinary is, their acknowledgment that the federal government has the legal authority to pursue the death penalty against Mitchell, but, their willingness to use their judicial opinions as a bully pulpit to implore the executive branch to reconsider. Why do that? Because they insist that the existence of the tribal option shows that the United States plainly lacks the moral authority to execute Mitchell. (Understatedly, Christen’s opinion says: “I write to underscore only that 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.”)
What these federal judges are urging is that what president Donald Trump’s puppet, attorney-general William Barr, wants to have happen in Mitchell’s case for political reasons – not unlike the savage pro-death penalty appetites of previous attorney generals – is not what should prevail. Instead, they’re saying: respect for the Navajo’s disdain for the death penalty, as expressed through the tribal option, is the only honorable option for America.