Soon after Gov. Susana Martinez said she wanted legislators to reinstate the death penalty in New Mexico, the mother of an 11-year-old girl who was kidnapped, sexually assaulted and murdered on the Navajo Nation stirred debate about capital punishment on the state’s largest reservation.
Spotlighting frustrations with violent crime on the Navajo Nation, Ashlynne Mike’s mother, Pamela Foster, called on tribal leaders to authorize the death penalty.
“People say respect life as sacred, and slowly, with the creator’s help, we will find the right solutions for our people,” Foster wrote in an online petition that has since gained nearly 400 signatures. “Well, the right solution is changing the criminal justice system because crimes are outrageous on native land.”
Martinez had mentioned Ashlynne’s murder as an example of just one of the killings to shock New Mexico in the past year as reason to return to capital punishment, at least in the certain cases, such as the murders of children or law enforcement officers.
But the Navajo Nation, like nearly every other tribe, outlaws the death penalty. Federal prosecutors, not state authorities, are responsible for prosecuting homicides on tribal lands. So, regardless of any decision by the state Legislature to reinstate the death penalty, capital punishment is likely to remain rare in Indian Country.
While the issue may be one of justice for families such as Ashlynne’s, for tribal leaders, whether to permit capital punishment remains intertwined with tribal sovereignty and core beliefs.
Federal prosecutors can seek the death penalty even in states where it has been abolished. But Congress in 1994 gave tribes the option of deciding whether the death penalty will apply to tribal members who commit murder on tribal land.
The Navajo Nation pressed for what became known as “the tribal option.” Helen Elaine Avalos, assistant Navajo attorney general, told members of a congressional committee more than 20 years ago that the death penalty would not solve the struggles that lead to crime.
“The vast majority of major crimes committed on the Navajo Nation and within other Indian reservations are precipitated by the abuse of alcohol,” Avalos said. “The death penalty will not address the root of the problem. Rather, rehabilitation efforts will be more effective.”
Even so, federal prosecutors can still pursue the death penalty for certain crimes that fall under the U.S. government’s jurisdiction both inside and outside Indian Country. This is true even if the offense is committed on tribal land.
Lezmond Mitchell, a member of the Navajo Nation, is the only Native American on federal death row because the U.S. government, not the tribe, believed he should be executed.
A jury convicted Mitchell of murdering a 65-year-old woman and her 9-year-old granddaughter. The attacks occurred after Mitchell and a friend who was 16 hitchhiked near Fort Defiance, Ariz., in late 2001.
Mitchell, then 20, and his friend bummed a ride from Alyce Slim as she drove with her granddaughter, Tiffany Lee, to the nearby town of Sawmill.
Along the way, Mitchell and his friend, Johnny Orsinger, killed Slim by stabbing her 33 times. Then they drove Tiffany to the nearby mountains, cut her throat and bashed her head with rocks. The two men dismembered their victims and burned their clothes. Later, they used Slim’s truck to rob a trading post.
A federal jury convicted Mitchell on a series of charges, including murder. Murder falls under the Major Crimes Act, the primary law governing prosecutions in Indian Country and through which tribes have the option of accepting or rejecting capital punishment.
But, using a different legal maneuver, the U.S. Department of Justice obtained a death sentence for Mitchell against the tribe’s wishes. The federal government based its case for a death sentence on a different offense not included in the Major Crimes Act: carjacking resulting in death.
Then-Navajo Nation Attorney General Levon Henry asked federal prosecutors not to seek Mitchell’s execution. Years later, an account of the legal wrangling included in an appeals court judge’s opinion stated that Slim’s family also called on prosecutors not to pursue a death sentence. Paul Charlton, then the U.S. attorney for Arizona, agreed. But then-U.S. Attorney General John Ashcroft insisted on making the double murder of a grandmother and a little girl a death penalty case.
Ashcroft’s move stirred judges.
In a stinging dissent last year regarding Mitchell’s appeal on several issues, Judge Stephen Roy Reinhardt of the 9th U.S. Circuit Court of Appeals wrote that pursuing the death penalty over the Navajo Nation’s objections “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.”
But in a 2007 opinion, the same court upheld the U.S. Justice Department’s decision to seek the death penalty.
Judge Pamela Ann Rymer suggested tribes have the same right as states to apply the death penalty for certain crimes but do not overrule the federal government’s jurisdiction in every case.
Mitchell remains on federal death row in Terre Haute, Ind.
It is unclear if federal prosecutors would push again for a death sentence over a tribe’s objections.
A spokeswoman for the U.S. Attorney’s Office in Albuquerque declined to comment for this story, citing the pending prosecution of Ashlynne Mike’s suspected killer. A spokesman for the U.S. Department of Justice also declined to comment.
Asked his stance on the death penalty, Navajo Nation President Russell Begaye said in a statement to The New Mexican: “I support the Major Crimes Act as does the Navajo Nation Council and many Native American tribes.”
Referring to the law through which tribes have a say on the death penalty, Begaye signaled that Navajo Nation officials will continue to oppose capital punishment.
Begaye seemed to shut down debate over capital punishment in Mike’s case, noting the charges against her alleged killer fall under the Major Crimes Act, presumably exempting him from the death penalty.
Tom Begaye Jr. of Waterflow is accused of offering a ride to Ashlynne and her 9-year-old brother as they walked home from school May 2. Police charge that Begaye steered the children into the desert toward Shiprock Pinnacle, ordered Ashlynne out of his van, sexually assaulted her behind a secluded hill and bashed her head with a tire iron. Ashlynne’s brother escaped without being physically injured.
The case shocked New Mexico, and Gov. Martinez, a former district attorney, invoked Ashlynne’s name in calling on legislators to reinstate capital punishment. New Mexico lawmakers and then-Gov. Bill Richardson, a Democrat, abolished the death penalty in 2009.
Foster, Mike’s mother, launched her online petition last month.
There are always people in Indian Country on both sides of the death penalty debate, said Kevin Washburn, former director of the U.S. Bureau of Indian Affairs and a professor at The University of New Mexico School of Law.
But tribes generally remain skeptical of capital punishment meted out through federal courts, added Washburn, a member of the Chickasaw Nation. Only one tribe, the Sac and Fox Nation of Oklahoma, has opted in to the federal death penalty.
No one from the Sac and Fox Nation has been executed or sentenced to death under federal law.
Truman Carter, who served as the tribe’s treasurer when it opted in during the mid-1990s, said it allows for the potential of equal punishment in a state where the death penalty is still handed down for some capital offenses committed off the reservation.
“Indian Country should not be a safe haven — or perceived as a safe haven — for dangerous defendants,” said Carter, who now serves as a prosecutor for several tribes across Oklahoma.
Worries that federal prosecutors would disproportionately seek the death penalty for American Indians have not proven true, he added.
“It’s just a tool in the toolbox for prosecutors,” Carter said. “I wish more tribes had opted in or would opt in.”
Washburn, though, argues that pursuing the death penalty against tribal members would exacerbate the disparities Native Americans already encounter in the federal courts.
Federal juries deciding criminal cases rarely include Native Americans, depriving defendants of their Sixth Amendment right to be judged by their peers, he notes.
In addition, Washburn said, federal judges may hold court far from the reservations in their jurisdiction.
And around the country, he said, low-income communities populated largely by ethnic minorities tend to be more skeptical of the criminal justice system than predominantly white and affluent areas, leading to a pervasive mistrust of the federal courts in Indian Country.
“The federal government gave us George Armstrong Custer,” Washburn said, summing up a general skepticism of the U.S. government. “Do you want to trust them with the death penalty?”
For Foster, though, circulating her death penalty petition tries to reconcile a pride in tradition and sovereignty with the “sea of grief” on the reservation.
“We cannot continue to allow criminals on native land to kill,” she wrote. “And to have the freedom to live among us.”
Contact Andrew Oxford at 505-986-3093 or firstname.lastname@example.org. Follow him on Twitter @andrewboxford.