The Wrongful Death of an Indian: A Tribe’s Right to Object to the Death Penalty


This Essay responds to the execution of Lezmond Mitchell, the only American Indian on federal death row.  The execution was carried out on August 26, 2020 over the objection of both members of the victims’ family and the Navajo Nation.  This Essay takes the clear position that because the Federal Death Penalty Act of 1994 requires tribal consent to seek the death penalty for murder, or felony murder predicted on robbery or kidnapping, that tribal consent should also have been required before the United States sought the death penalty in a carjacking case.  The interpretation by the Ninth Circuit and the decision by the Executive to proceed with the execution undermine tribal sovereignty and are contrary to both congressional intent and statutory interpretation.


On August 26, 2020 the only American Indian on federal death row was executed by the United States via lethal injection.[1]  The execution proceeded despite pleas from tribal leaders and members of the victims’ family for forbearance, and was only made possible by subverting congressional intent which expresses an unequivocal preference for permitting Indian tribes to object to the use of the death penalty for major crimes committed by Indians on their reservations.[2]

The federal government executed an Indian for a crime against another Indian on an Indian reservation over the explicit objection of the relevant Indian Tribe; a decision that feeds a narrative about power, race, and justice.  Set against the backdrop of 2020, with issues of race and policing vying only with updates about COVID-19 for headlines and column inches across the country, Lezmond Mitchell’s execution provides an opportunity for critical reflection.

This Essay takes the position that the U.S. Department of Justice violated at least the spirit, if not the letter, of the Federal Death Penalty Act of 1994 when it sought, defended, and ultimately carried out the execution of a Navajo man for a crime committed on the Navajo Reservation over the expressed objection of the Navajo Nation.  It casts the death sentence carried out on August 26th as an abridgment of the right to tribal sovereignty and an executive branch abrogation of the intent of the U.S. Congress.  The law as written, if properly understood and applied, fails to countenance the imposition of a death sentence against any person subject to the criminal jurisdiction of an Indian tribe for a crime committed in Indian country without the tribe’s affirmative election.

I. The Crime

No defense can be made for the criminal conduct at the heart of the case.  On the afternoon of October 28, 2001, 63-year-old Alyce Slim and her 9-year-old granddaughter were returning home from visiting a traditional medicine person when they picked up 20-year-old Mitchell and 16-year-old Johnny Orsinger.[3]  The hitchhikers killed Slim when she stopped the vehicle to let them out at their purported destination and then drove to an isolated location and killed the granddaughter by dropping twenty-pound rocks her head.[4]  Both bodies were dismembered, with their head and hands buried and torsos hidden in the woods.[5]

The Federal Bureau of Investigation (FBI) and tribal law enforcement coordinated an investigation which resulted in tribally-issued warrants to search a number of homes, including Mitchell’s, during which incriminating evidence was discovered.[6]  After being advised of his Miranda rights, Mitchell ultimately made inculpatory statements and agreed to help investigators locate the bodies.[7]  A federal indictment was subsequently issued and Mitchell was transferred to federal custody.[8]  He was ultimately charged with “murder; felony murder, robbery; carjacking resulting in death; several robbery-related counts; kidnapping; and felony murder, kidnapping.”[9]  The U.S. Attorney General overrode the decision of the U.S. Attorney not to seek the death penalty and two months after charges were filed the government filed notice of its intent to seek the death penalty against Mitchell—not on the murder charge, not on the felony murder charges, but on the charge of carjacking resulting in death under 18 U.S.C. § 2119.[10]  Mitchell was convicted on all counts, and despite evidence that another contemporaneous carjacking resulting in murder on the Navajo reservation did not result in a capital sentence, and evidence that “the Navajo Nation did not condone capital punishment in general or for Mitchell’s crimes in particular,” the jury recommended, and the judge imposed, the sentence of death.[11]

Orsinger, a minor at the time of the offense, was also involved in the other on-reservation carjacking that ended in murder.  His trial was severed from Mitchell’s and he was ultimately convicted of four murders and sentenced to life in prison without possibility of parole.[12]

II. The Law

The controversial application of the death penalty is notably more complicated when applied by a federal court to a crime committed by an Indian in Indian country.  As Justice O’Connor has observed, “in the United States, we have three types of sovereign entities—the Federal government, the States, and the Indian tribes.  Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.”[13]  How these sovereigns work together to prosecute crimes is more complicated than most Americans realize.

Congress has explicitly recognized the unique sovereign position that Indian tribes hold in the American justice system, and that recognition includes special consideration for capital crimes that occur on tribal lands.  The Federal Death Penalty Act of 1994 includes some explicit limitations barring federal prosecutors from seeking the death penalty for major crimes committed in Indian country:

[18 U.S.C.] § 3598.  Special provisions for Indian country.

     Notwithstanding sections 1152 and 1153 [18 U.S.C. §§ 1152 and 1153], no person subject to the criminal jurisdiction of an Indian tribal government shall be subject to a capital sentence under this chapter [18 U.S.C. §§ 3591–98] for any offense the Federal jurisdiction for which is predicated solely on Indian country (as defined in section 1151 of this title [18 U.S.C. § 1151]) and which has occurred within the boundaries of Indian country, unless the governing body of the tribe has elected that this chapter have effect over land and persons subject to its criminal jurisdiction.[14]

Congress is clear.  In order for the United States to seek the death penalty for offenses whose jurisdiction is predicated on being in Indian country, a tribal government must affirmatively elect to sanction capital charges.  This has the effect of functionally prohibiting the death penalty for reservation crimes committed by Indians without tribal consent.  Notably, at least one tribe has permitted the sanction; the Sac and Fox Nation made the required election in 1995.[15]

Murder is an offense which clearly falls within the auspices of § 3598.  In 1883 the U.S. Supreme Court held that no federal law permitted the federal prosecution of an Indian for the murder another Indian of the same tribe while on tribal lands.[16]  In response Congress enacted the Major Crimes Act in 1885 which originally listed seven “major crimes” for which the United States could prosecute Indians—including murder.[17]  The Act has been amended over the years and the list of Major Crimes has expanded to include many others including kidnapping and robbery.[18]

Importantly, the Major Crimes Act is limited to offenses committed “within the Indian country.”  It provides that the enumerated crimes fall under the “exclusive jurisdiction” of the United States.[19]  Therefore, Indians convicted of crimes enumerated under the Major Crimes Act are subject to the restriction on capital punishment imposed by the Federal Death Penalty Act of 1994.  The United States may not seek the death penalty for these offenses without first securing the affirmative election of the appropriate tribal government.

Put simply, the federal prosecutor attached to Mitchell’s case could not have sought the death penalty for the murders committed by the defendant.  The prosecutor could not have sought the death penalty for the kidnapping of Slim or her granddaughter, nor the robbery.  Carjacking, however, is not listed among the enumerated crimes in the Major Crimes Act.  A carjacking committed by an Indian in Indian country is not “exclusively” subject to the jurisdiction of the United States under the Major Crimes Act.  The U.S. Attorney General directed the federal prosecutor (over the objection of the U.S. Attorney) to seek the death penalty in Mitchell’s case solely on the basis of the carjacking conviction because the prosecutor could not legally seek the death penalty under the murder, kidnapping, or robbery charges.

Mitchell appealed the death sentence arguing that it was a clear violation of the Special Provisions for Indian Country firmly embedded in the Federal Death Penalty Act of 1994.  Unfortunately a divided panel of the Ninth Circuit affirmed.  Judge Pamela Rymer, writing for herself and Judge Barry Silverman, reasoned that the Special Provisions for Indian Country place a limitation on the federal prosecutor only when seeking the death penalty for one of the enumerated crimes that requires it be committed in Indian country as an element of the offense.  Because a conviction for carjacking resulting in death under 18 U.S.C. § 2119 is a crime of nationwide applicability, no approval by the tribe was required:

     Thus, the FDPA unambiguously requires opt-in only where jurisdiction is based on Indian country, not, as Mitchell would have it, whenever the federal government seeks capital punishment. . . .  Mitchell insists that a contrary interpretation defeats the purpose of § 3598 if the government, precluded from seeking the death penalty on the basis of first degree murder, can instead rely on a federal death eligible statute such as § 2119.  While a court may refuse to follow the plain language of a statute if it would produce unreasonable results, it is doubtful that Congress would have intended to carve out special exemptions to Indian tribes for the more than 40 death eligible federal offenses covered by the FDPA without expressly saying so.[20]

Judge Stephen Reinhardt dissented.  In dissent he did not specifically opine on the construction of § 3598 but concluded that procedural errors justified reversal.  The grounds for reversal included: that Mitchell was held by tribal authorities for twenty-five days without counsel or arraignment, that repeated interrogation during this prolonged detention resulted in an unlawfully secured series of confessions which were improperly admitted at trial, that the lower court was wrong to allow the only African American juror in the venire poor to be removed on the pretext that he had previously voted to acquit a defendant of an unspecified crime twenty years earlier, and that contrary to the Federal Rules the trial court permitted Mitchell to waive his presence during sentencing so that the jury voted to recommend the death penalty without seeing or hearing from the person whose fate (life or death) it was determining.[21]  An appeal to the U.S. Supreme Court was denied.[22]

After exhausting his direct appeals Mitchell continued to challenge his death sentence.  In 2010 Mitchell filed a motion arguing that his public defenders rendered ineffective assistance of counsel in violation of 28 U.S.C. § 2255.  The district court denied the motion and a divided panel of the Ninth Circuit affirmed.  It reasoned that Mitchell’s legal team, composed of two highly experienced public defenders and a private lawyer experienced in capital cases, did not fall below the professional standards of representation protected by the Sixth Amendment.[23]  In partial dissent Judge Reinhardt would have granted the motion limited to the penalty phase of the trial where Mitchell was permitted to waive his physical presence.[24]  Judge Reinhardt’s opinion also had pointed words about the importance of federal judicial deference to  tribal sovereignty:

While this court’s jurisprudence indeed gives the federal government the legal authority to exercise jurisdiction over this case for the purpose of obtaining capital punishment, succeeding in that objective over the express objections of the Navajo Nation and the victims’ family 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.[25]

More recently Mitchell sought relief from judgment pursuant to a Rule 60(b) motion.  In 2009 he had requested to interview the jurors in his case to determine if bias or prejudice could have affected the jury verdict.[26]  The request was denied.  In 2018 Mitchell argued that the Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado changed the law governing requests to interview jurors to discover evidence of racial bias, and so constituted an extraordinary circumstance permitting the federal courts to reconsider his request to interview the jurors.[27]  The district court disagreed and denied Mitchell’s motion.  A three-judge panel of the Ninth Circuit affirmed, but unusually there were two concurrences.[28]

Judge Sandra Ikuta, writing for the unanimous bench, reasoned that Peña-Rodriguez did not usher in a sea change permitting the widespread investigation and impeachment of jurors but rather created an exception to the Federal Rules of Evidence when “a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant.”[29]  Because the opinion “left untouched” the law governing the investigation and interviewing of jurors, there was no change in the law and certainly not one that would justify the “extraordinary circumstances” required to prevail under Rule 60(b).[30]

Judge Morgan Christen concurred.  While she joined Judge Ikuta’s opinion in full, she wrote separately to highlight “that Mitchell did not receive the death penalty for his murder convictions” and urged the United States to pause and 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.”[31]  Judge Christen underscored that the Ninth Circuit had previously decided that the United States could seek the death penalty, and did not revisit that decision, but she opined powerfully on how the federal government’s pursuit of the death penalty for a crime committed by an Indian in Indian country is a violation of tribal sovereignty:

The imposition of the death penalty in this case is a betrayal of a promise made to the Navajo Nation, and it demonstrates a deep disrespect for tribal sovereignty.  People can disagree about whether the death penalty should ever be imposed, but our history shows that the United States gave tribes the option to decide for themselves.[32]

Judge Andrew Hurwitz also concurred and joined Judge Ikuta’s opinion in full.  He wrote separately to urge the “current Executive” to take another look at the case:

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.[33]

In his concurrence Judge Hurwitz cited directly to the provision in Article II of the U.S. Constitution dealing with reprieves and pardons, suggesting explicitly that the Executive has the power to consider whether the death penalty is appropriate on these facts, and implicitly suggesting the Executive consider commuting the sentence to life imprisonment.[34]

Judge Reinhardt, Judge Christen, and Judge Hurwitz’s thoughtful commentary on the balance of power and respect for tribal sovereignty were echoed by the request for commutation made by President Jonathan Nez and Vice President Myron Lizer of the Navajo Nation[35] and the clemency petition filed by Mitchell himself.[36]  The opportunity to promote tribal sovereignty and to uphold congressional intent fell on deaf ears.  Lezmond Mitchell was executed by the United States at the federal detention facility in Terre Haute, Indiana at 6:29 p.m. on August 26, 2020.[37]

III. Tribal Sovereignty

This Essay argues that the outcome in Mitchell’s case was wrong on the law.  The federal courts should read § 3598 of the Federal Death Penalty Act in pari materia with the history of tribal sovereignty.  Doing so reveals that the initial Ninth Circuit decision permitting the United States to seek the death penalty for carjacking, when it could not do so for murder, felony murder-kidnapping, or felony murder-robbery, was in direct violation of legal protections for tribal sovereignty.  The more consistent reading of the law is that, because of federal policies deferential to tribal sovereignty, § 3598 requires the tribal government to opt in to the use of capital punishment by the United States for any crime committed by an Indian in Indian country.  This reading has support from both congressional intent and the Indian law canons of construction.

American Indian tribes have always been sovereign.  The U.S. Supreme Court first recognized that tribes are sovereign “nations” in 1831[38] and has reaffirmed that proposition ever since.  Tribal sovereignty is among the most basic tenants of Indian law.  Tribes have the right “to make their own laws and be ruled by them.”[39]  Tribal sovereignty extends “over both their members and their territory.”[40]  Tribal sovereignty is thus a bedrock of federal common law, finding its origins in two centuries of Supreme Court jurisprudence.[41]  The Court has directed that “[w]hen on-reservation conduct involving only Indians is at issue . . . the federal interest in encouraging tribal self-government is at its strongest.”[42]  The clear disregard of tribal sovereignty countenanced by the Ninth Circuit’s decision does permanent injury to these well-established legal principles and the inherent authority of tribal sovereigns.

Capital punishment has no basis in Navajo culture.  The Navajo Nation, as an expression of its inherent sovereignty, has explicitly disclaimed the use of the death penalty against its members by the United States as a violation of tribal law and tradition.  The Nation made its position clear in a 2002 letter authored by Levon Henry, Attorney General for the Navajo Nation, and sent to the U.S. Attorney and subsequently filed with the court.  Attorney General Henry is clear:

As part of Navajo cultural and religious values we do not support the concept of capital punishment.  Navajo holds life sacred.  Our culture and religion teach us to value life and instruct against the taking of human life for vengeance.  Navajo courts recognize traditional peacemaking as part of the judicial system.  It is through traditional peacemaking that harmony is restored in situations which have been disturbed through an act of crime.  Committing a crime not only disrupts the harmony between the victim and the perpetrator but it also disrupts the harmony of the community.  The capital punishment sentence removes with any possibility of restoring the harmony in a society.[43]

This is not a new position for the Navajo.  During congressional hearings on the 1994 Crime Bill the Navajo Nation summarized its concerns about federal prosecutors and the death penalty:

The issue, for the Navajo Nation and the other Indian tribes, is not whether the death penalty is good or bad, but whether Indian tribes should have the right to determine for themselves the severity of the punishment for major crimes committed on their Reservations.  It is incumbent upon the federal government to allow Indian tribes the choice of whether the death penalty should be extended to our territory.[44]

Based in part on this testimony, Congress enacted the Special Provisions for Indian Country embedded in § 3598.  There is no doubt that the Navajo Nation felt that the law requires its affirmative consent before the United States seeks the death penalty against any Indian person who commits a crime on the reservation.  This was true before the Mitchell case and, despite the decisions of the Ninth Circuit, is still true today.

Among the most important legal canons adopted by the U.S. Supreme Court is in pari materia—literally, “on the same subject” or “in a like matter.”  The canon requires that legal principles relating to the same subject should be read “as if they were one law.”[45]  The Supreme Court has given plenty of instruction to lower courts that individual statutes related to Indians should be read in pari materia with broader federal policies and other federal laws.  As far back as 1911 the Supreme Court held that the congressional purpose of protecting Indians should be read in pari materia with Congressional statutes related to reservations.[46]  More recently, in Bryan v. Itasca County,[47] the Supreme Court held that while a federal statute (Public Law 280) delegated to states the power to enforce criminal laws on some reservations, it did not extend to the states the related power to tax Indians to cover the expenses of state law enforcement.[48]  The Court reasoned that Public Law 280 must be read alongside other contemporaneous federal statutes related to Indians, and that had Congress intended to confer the power of state taxation, it would have said so directly.[49]  In Mitchell’s case, by reading the Federal Death Penalty Act of 1994 by itself, instead of against the backdrop of tribal sovereignty, the Ninth Circuit came to the wrong interpretation of the law.  This misreading cost Mitchell his life.

In addition to the general in pari marteria canon, the Supreme Court has articulated a series of Indian law canons to guide courts when deciding cases involving Indian tribes and tribal sovereignty.[50]  Among the most important of these is that federal laws should be construed liberally with “[a]mbiguities in federal law . . . construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence.”[51]  Essentially, “any ambiguities [are] resolved in favor of the Indians.”[52]  The canon has been used to determine that seals are fish,[53] that a right to transport goods makes an Indian tribe exempt from paying a state tax on fuel,[54] and that a tribe that loses its political relationship with the United States does not lose its treaty rights.[55]  Interpreting § 3598 to require a tribe to opt into the federal use of the death penalty for any crime that occurs in Indian country is perfectly consistent with the text of the statute when read alongside the Indian law canon.

Such an interpretation is also consistent with Congress’s intent.  As the Ninth Circuit noted in a different case, Congress intended Indian tribes to be able to control the imposition of capital sentences for crimes committed in Indian country: “The Federal Death Penalty Act places Native American tribes on an equal footing with states: they may decide whether or not ordinary first degree murder committed within their jurisdiction is punishable by death, even if first degree murders in Indian country are prosecuted in federal court.”[56]  The Ninth Circuit specifically pointed to congressional testimony to support this broader reading of § 3598; from Senator Pete Domenici (“[T]his amendment gives the Indian legislative bodies, their tribal councils, the authority to elect whether or not murder committed on their land by an Indian is subject to the death penalty or not. . . .”)[57] and from Senator Daniel Inouye, one of the bill’s primary sponsors (“Congress aimed to ‘address Indian nations based upon their status as governments.’”).[58]

When the Ninth Circuit claimed to be applying the plain textual interpretation of the Federal Death Penalty Act, it blatantly ignored the context of tribal sovereignty and Congress’s clear intent to prevent the U.S. government’s imposition of the death penalty for crimes committed by Indians on Indian lands without an affirmative election by the tribal government with jurisdiction over the reservation.  How can the Ninth Circuit plausibly suggest that while Congress required permission from the tribe to seek a capital sentence for convictions of murder or felony murder based on robbery or kidnapping, it did not intend the tribe to hold the same gatekeeping role for a carjacking?  Such an incongruous result could only arise from a tortured interpretation of the statute alone—without reading the statute in pari materia with an expressed federal policy in favor of tribal sovereignty, without using the Indian law canons of construction that any ambiguity in the interpretation of federal statutes be resolved in favor of the tribe, and without considering the congressional intent manifest in the legislative history of § 3598.  Had the Ninth Circuit considered the role of tribal sovereignty when interpreting the law, it would have concluded that the Navajo Nation’s affirmative election was required before the United States could seek the death penalty in Mitchell’s case.  It should have done so.


In 1994 Congress made explicit its commitment to respect tribal sovereignty, and to defer to tribal governments, surrounding the imposition of a truly irreversible sentence.  Legislative history and legal doctrine provide ample support for the conclusion that if the United States needs the acquiescence of an Indian tribe to seek the death penalty against an Indian who, within Indian country, commits a murder, or felony murder based on kidnapping or robbery, then the United States similarly needs tribal permission to seek the death penalty for a carjacking.  Holding otherwise is inconsistent with both tribal sovereignty and the canons of statutory interpretation.

The execution of Lezmond Mitchell on August 26, 2020 should be the last time the federal judicial system kills an Indian for any crime that occurs in Indian country without an affirmative election from the concomitant tribal government in favor of the capital sentence.  Using legal loopholes to allow the United States to proceed against tribal wishes undermines tribal sovereignty and countermands almost two centuries of federal common law jurisprudence.  As Justice Black wrote at the end of his dissent in Federal Power Commission v. Tuscarora Indian Nation:[59] “Great nations, like great men, should keep their word.”[60]

[1].        Press Release, Kerri Kupec, Spokesperson, U.S. Dep’t of Just., Statement on the Execution of Lezmond Mitchell (Aug. 26, 2020), [].

[2].        Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended at 18 U.S.C. § 3598).

[3].        United States v. Mitchell, 502 F.3d 931, 942–43 (9th Cir. 2007).

[4].        Id. at 943.

[5].        Id.

[6].        Id. at 944.

[7].        Id.

[8].        Id. at 945.

[9].        Id.

[10].     Id.

[11].     Id. at 946.

[12].     See United States v. Orsinger, 698 Fed. Appx. 527 (9th Cir. 2017).

[13].     Sandra Day O’Connor, Lessons From the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 1 (1997).

[14].     Federal Death Penalty Act of 1994, Pub. L. No. 103-322, § 60002(a), 108 Stat. 1959, 1968 (codified as amended at 18 U.S.C. § 3598).

[15].     See Kevin K. Washburn, Federal Criminal Law and Tribal Self-Determination, 84 N.C. L. Rev. 779, 831 (2006).

[16].     Ex parte Crow Dog, 109 U.S. 556 (1883).

[17].     Major Crimes Act of 1885, ch. 341, § 9, 23 Stat. 362, 385 (codified as amended at 18 U.S.C. § 1153).

[18].     See 18 U.S.C. § 1153.  The current list of offenses is “murder, manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony assault under section 113, an assault against an individual who has not attained the age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony under section 661 of this title.”  Id.

[19].     Id.

[20].     United States v. Mitchell, 502 F.3d 931, 948–49 (9th Cir. 2007) (internal citation omitted).

[21].     Id. at 997–1014 (Reinhardt, J., dissenting).

[22].     Mitchell v. United States, 553 U.S. 1094 (2008) (mem.).

[23].     Mitchell v. United States, 790 F.3d 881, 884 (9th Cir. 2015).

[24].     Id. at 894 (Reinhardt, J., dissenting).

[25].     Id. at 897.

[26].    Mitchell v. United States, 958 F.3d 775, 779 (9th Cir. 2020).

[27].     Id.

[28].     Id. at 792–93 (Christen, J., concurring); id. at 793–94 (Hurwitz, J., concurring).

[29].     Id. at 789 (citing Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017)).

[30].     Id. at 790.

[31].     Id. at 792 (Christen, J., concurring).

[32].     Id. at 793.

[33].     Id. at 794 (Hurwitz, J., concurring).

[34].     Id.

[35].     Letter from Jonathan Nez, President, Navajo Nation, & Myron Lizer, Vice President, Navajo Nation, to Donald Trump, U.S. President (July 31, 2020), [].

[36].     Memorandum in Support of Petition for Clemency & for Commutation of Death Sentence to U.S. President & U.S. Pardon Attorney (July 31, 2020), [].

[37].     Hailey Fuchs, Justice Dept. Executes Native American Man Convicted of Murder, N.Y. Times (Aug. 26, 2020), [].

[38].     Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

[39].     Williams v. Lee, 358 U.S. 217, 220 (1959).

[40].     United States v. Mazurie, 419 U.S. 544, 557 (1975).

[41].     See generally Zachary S. Price, Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction, 113 Colum. L. Rev. 657 (2013) (describing the origin of the federal-tribal relationship, recognizing the inherent sovereignty of Indian tribes, and placing the federal recognition of this tribal sovereignty in the Nineteenth century); Matthew L. M. Fletcher, Tribal Consent, 8 Stan. J. C.R. & C.L. 45 (2012) (same).

[42].     White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144 (1980).

[43].     Letter from Levon B. Henry, Att’y Gen., Navajo Nation Dep’t of Just., to Paul Charlton, U.S. Att’y, U.S. Dep’t of Just. (Jan. 22, 2002) (on file with author).

[44].     Jon M. Sands, Indian Crimes and Federal Courts, 11 Fed. Sent’g Rep. 153, 156 (1998).

[45].     Wachovia Bank v. Schmidt, 546 U.S. 303, 315–16 (2006) (quoting Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)).

[46].     See Tiger v. Western Inv. Co., 221 U.S. 286, 306 (1911).

[47].     426 U.S. 373 (1976).

[48].     Id. at 392.

[49].     Id. at 389–90.

[50].     Note, Indian Canon Originalism, 126 Harv. L. Rev. 1100, 1100–01 (2013).

[51].     White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143–44 (1980).

[52].     Herrera v. Wyoming, 139 S. Ct. 1686, 1699 (2019) (quoting Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 206 (1999)).

[53].     See Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157, 1167 (9th Cir. 2017).

[54].     See Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1016 (2019) (Gorsuch, J., concurring).

[55].     See Menominee Tribe of Indians v. United States, 391 U.S. 404, 406 (1968).

[56].     United States v. Gallaher, 624 F.3d 934, 939 (2010).

[57].    Id. at 938–39 (alteration in original).

[58].     Id.

[59].     362 U.S. 99 (1960).

[60].     Id. at 142 (Black, J., dissenting).

About the Author

Grant Christensen is an Associate Professor of Law and Affiliated Associate Professor of American Indian Studies at the University of North Dakota where he is also the director of North Dakota’s Indian Law Certificate program. He holds an LL.M. in Indigenous Peoples Law & Policy from the University of Arizona and a J.D. from Ohio State.