For years, the Navajo Nation has pleaded with the federal government to spare the life of Lezmond Mitchell.
But 17 years after he was convicted of killing Alyce Slim, 9, and her granddaughter Tiffany Lee, 63, Mitchell is scheduled on Wednesday to become the first Native American the federal government has executed in modern history.
Mitchell, 38, is scheduled to be executed by lethal injection Wednesday evening at the Federal Correctional Complex in Terre Haute, Indiana.
On Sunday, his lawyers asked the U.S. Supreme Court to halt his execution. They also have one final request for clemency pending before President Donald Trump.
The Navajo Nation has consistently objected to the federal government pursuing the death penalty against Mitchell. The tribe opposes the death penalty in general.
According to Mitchell's lawyers, his case is the only time in modern history the federal government has sought the death penalty over the objection of a tribe when the crime was committed on tribal land.
The case
In 2001, Mitchell, then 20, and Johnny Orsinger, who was a teenager at the time, traveled from Round Rock, Arizona, to Gallup, New Mexico. Mitchell was preparing for an armed robbery, according to court records.
The two hitchhiked back to the Navajo Nation.
Slim and her granddaughter were traveling to Tohatchi, New Mexico, to see a traditional medicine person for leg ailments and then to Twin Lakes, New Mexico.
At some point on the trip, Mitchell and Orsinger got into Slim's truck.
Slim stopped near Sawmill, Arizona, to let the men out, but they stabbed her 33 times. They made Tiffany sit next to her grandmother's body, and Mitchell drove to the mountains before ordering Tiffany out of the truck.
According to court records, Mitchell cut her throat, and when she did not die, Orsinger used rocks to kill her.
A few days later, Mitchell was involved in the robbery of a trading post in the Navajo Nation. The employees were tied up in the vault room, and the men took $5,530 and a purse.
Because the crimes occurred on tribal land, Mitchell was tried in federal court.
He was convicted of robbery, firearm violations, carjacking resulting in death, murder and kidnapping. He was sentenced to death.
Since Orsinger was a juvenile, he was ineligible for the death penalty. He pleaded guilty and was sentenced to life in prison.
Criminal jurisdiction on tribal land
If a crime is committed on tribal land, it could be prosecuted by the tribe, the state or the federal government depending on the ethnicity of the defendant and victim, as well as the charges.
The federal government didn't have any jurisdiction on tribal land until Congress passed the Major Crimes Act in 1885. It was the result of a 1883 Supreme Court ruling that determined that the federal government didn't have jurisdiction in a murder case on the Great Sioux Reservation.
A member of the tribe killed another person in 1881. The crime was resolved by the tribal government. However, the federal government decided to prosecute the case and sentenced the man to death. His case was appealed to the Supreme Court, which ruled the federal government lacked jurisdiction.
Since then, the federal government has incrementally seized control of tribes' legal proceedings.
With the passing of the Major Crimes Act, the federal government gained jurisdiction over certain crimes committed on tribal land by a Native American against another Native American. Several crimes fall under the Major Crimes Act, including murder.
In 1968, the Indian Civil Rights Act limited which felonies tribal courts could prosecute and the length of sentences.
In 1994, the Federal Death Penalty Act allowed tribal governments to say if they wanted the capital punishment to be applied to their citizens. But there are exceptions.
The federal government did not need the Navajo Nation's permission to pursue the death penalty against Mitchell because one of his charges was "carjacking resulting in death."
The crime is not a part of the Major Crimes Act, but is considered to have "nationwide applicability." That means it can be charged as a federal crime no matter where it takes place across the country.
Levon Henry, attorney general for the Navajo Nation, sent a letter in 2002 to Paul Charlton, then the United States attorney for the District of Arizona. He said the Navajo Nation was against pursuing the death penalty and requested the federal government not seek capital punishment.
He explained their culture and religion teaches them to value life and to not take human life for vengeance.
Then-U.S. Attorney General John Ashcroft overrode Charlton's recommendation, according to records.
According to Mitchell's lawyers, the attorney general has honored a tribal government's objections to not seek the death penalty in all other similar cases.
Carl Slater, council delegate for the Navajo Nation, drafted legislation concerning Mitchell. The resolution makes it clear the Navajo Nation is against the death penalty for any of its members.
"Punitive justice, as expressed by western and United States' influences, by definition, does not create harmony and serves to primarily reinforce discord within society," the proposed legislation stated.
Asking for clemency
Leaders for the Navajo Nation and advocates have sent President Donald Trump multiple letters asking him to commute Mitchell's sentence. They have shared with the president the beliefs of the Navajo Nation and asked for Mitchell to receive a life sentence.
"Our justice system is based on life – Iiná – that is sacred and must be protected. We therefore condemn murder and abhor the crimes committed in this case," Seth Damon, Speaker of the Navajo Nation Council wrote. "But our belief system requires us to seek harmony and restore not only the victim, but also to restore the broken relations between families and communities so we all may heal."
Earlier this month, Navajo Nation President Jonathan Nez and Mitchell's lawyers met with the U.S. Pardon Attorney.
Mitchell has submitted three petitions for commutations of his sentence, according to the U.S. Department of Justice. His earliest petitions were administratively closed in 2017 and 2019. There is one petition still pending.
Celeste Bacchi, Mitchell's attorney, said in a statement that they answered questions from the Office of the Pardon Attorney about tribal sovereignty.
"President Nez gave a powerful statement about how this case could set an unfortunate precedent for tribes across the United States and how Lezmond’s death sentence violates the Navajo Nation’s sovereignty, culture and traditional values," she said. "We look forward to a decision on our petition for executive clemency from President Trump.”
Asking for SCOTUS' help
Mitchell's lawyers have used the final days before his execution to ask the court's help for their client. His lawyers are waiting to hear if the Supreme Court will grant their emergency motion to halt the execution and look into Mitchell's case.
Before going to the Supreme Court, his lawyers unsuccessfully worked their way through lower courts to stop the execution.
After a district court judge ruled against their appeal to halt the execution, they filed an emergency motion in the Ninth Circuit. Mitchell's lawyers argued the Bureau of Prisons' lethal-injection protocol is unclear, violates the Federal Death Penalty Act and that Arizona's execution procedures were safer than the federal government's.
Arizona has not executed an inmate since 2014. During the last execution, a controversial cocktail left the inmate snorting and gasping for nearly two hours before he died.
The execution led to a lawsuit and a series of settlements establishing what drugs the Arizona Department of Corrections, Rehabilitation and Reentry could not use, what witnesses should be allowed to see and how the protocol must be followed.
William G. Voit, assistant U.S. attorney, wrote in a motion that Mitchell's attorneys were trying to require the federal government to follow Arizona's execution procedures, "down to minutiae like the color of syringe labels and the number of witnesses present."
The Ninth Circuit did not find a reason to delay Mitchell's execution and ordered the federal government to follow parts of Arizona's protocol.
This was not the first time the court ruled to allow the execution to proceed. The court also ruled in favor of the federal government in April.
However, Ninth Circuit Judges Morgan Christen and Andrew Hurwitz in their opinions agreed that legally the federal government was able to proceed, but also appeared to chide the federal government for doing so.
"When the sovereign nation upon whose territory the crime took place opposes capital punishment of a tribal member whose victims were also tribal members because it conflicts with that nation’s 'culture and religion,' a proper respect for tribal sovereignty requires that the federal government not only pause before seeking that sanction, but pause again before imposing it," Hurwitz, wrote.
Have thoughts about Arizona's legal system? Reach criminal justice reporter Lauren Castle at Lauren.Castle@gannett.com. Follow her on Twitter @Lauren_Castle.
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