Military and Native American Criminal Justice

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Military and Native American Criminal Justice

In the early twenty-first century multiple criminal justice systems existed in the United States. Two major kinds of systems—in addition to the civilian U.S. criminal justice system—were the military justice system and numerous American Indian or Native American justice systems. The military judicial system balances the rights of military service members with the need to maintain strict discipline. It has jurisdiction (legal authority in a geographic area) over all military members accused of criminal conduct no matter where they are stationed in the world.

Military justice is one part of military law; another is martial law, which is when the military exerts police power in politically unstable areas. The military justice system changed through time from being strictly run by military commanders who exerted considerable influence over proceedings of each trial to a more formal, standardized process that included protection of the constitutional rights of accused service men and women and provided them an opportunity to appeal decisions. Since the mid-twentieth century, fairness in the judicial process has been considered important in maintaining high morale in the military. Military courts are administered by the Department of Defense, not the Department of Justice.

Hundreds of Native American governments formally recognized by the U.S. government maintain sovereignty (a government free from outside control) over their lands and tribal members within the borders of the United States. In 2000 some 1.4 million Native Americans lived in the United States, or about 1.5 percent of the total population, many of whom claim tribal affiliations. Only the U.S. Congress can make decisions restricting tribal sovereignty.

American Indian reservations and other lands controlled by tribes are known as Indian Country in legal terms. Indian Country amounts to some 56 million acres within the United States, scattered in small areas around the country. As part of their sovereignty, tribes maintain their own criminal jurisdiction on these lands. Over two hundred tribal justice systems operate independently of each other and the U.S. criminal justice system. Given the poverty of many tribal communities in the late twentieth century, criminal justice in Indian Country was poorly coordinated.

Early military justice

The first federal courts in the United States were military courts created to maintain discipline and order in the American Revolutionary Army during the war for independence from Great Britain. In 1775 the Continental Congress created Articles of War patterned after the British military legal system. The articles emphasized discipline more than justice. In addition to the more common types of crimes such as murder, robbery, and rape, the military also added insubordination (disobeying someone of higher military rank), poor performance of duties, and absenteeism. Federal civilian courts did not come into existence until the late 1780s, following the adoption of the U.S. Constitution in 1787.

The two justice systems remained separate even though the Constitution gave responsibility for military matters to the civilian side of government. The Constitution named the U.S. president as commander-in-chief of the armed forces. It also gave Congress responsibility to raise and fund the armed services for the common defense of the nation. The U.S. Supreme Court stayed away from accepting appeals from military cases,
except where the cases protected civilians (nonmilitary people) from prosecution in military courts.

One main difference between the two criminal justice systems was that the military system did not have an appeals process with appellate courts. A military member convicted in a court proceeding had no means of appealing the decision. Even the U.S. president, who could pardon (grant exemption from punishment) the defendant, could not actually reverse the decision.

With limited revisions through the years, the system remained largely unchanged until after World War II (1939–45; war in which Great Britain, France, the Soviet Union, the United States, and their allied forces defeated Germany, Italy, and Japan). The emphasis remained on discipline. Public concern over justice within the military system was rare; military justice was considered primarily a tool for commanding officers to maintain discipline. To ensure military order, the military system had to operate swiftly and harshly when necessary, quite different from the much slower civilian criminal system.

It was common knowledge that when citizens joined the military, they gave up a certain degree of their constitutional rights, such as freedom of speech. The authority of the military command had to be reinforced. Military society was clearly different than civilian society.

One change did come in 1863 during the American Civil War (1861–65) when Congress more clearly defined the court-martial process, reaffirming the authority of the military to prosecute the crimes and conduct of its personnel. During this early period, commanders held considerable influence over the military criminal justice system. Commanders accepted cases, selected members of the court from those under their command, and had to approve sentences before they went into effect. Commanders could alter punishments either by influencing court members or by simply changing them, making sentences harsher or lighter if they chose.

Military defendants did not have the right to an attorney like in civil criminal cases. Instead, the judge advocate general (JAG) would both prosecute the case on behalf of the military and provide limited legal advice to the defendant. The person JAG assigned to advise the defendant might not even be a lawyer; they mostly followed instructions from a booklet about court-martial proceedings.

Military Police

The enforcement of military codes and discipline is a necessity within the U.S. armed forces. Military police generally capture deserters (those who run away from their post), arrest service personnel accused of criminal activities, and control rowdiness.

During the American Revolution, the Continental Army copied the British system of police units called provosts (soldiers assigned solely to keep order). However, following the Revolution until the Civil War, the army simply assigned regular troops to perform these policing duties, but during the conflict the large armies of the North and South were particularly unruly while in camp and away. Soldiers looted and fought frequently, so both sides adopted systems creating provost marshals, who had police powers. The marshals assumed important responsibilities after the war as well, overseeing the temporary local governments setup in the South.

During World War I (1914–18) the U.S. Army established the Military Police Corps with soldiers wearing "MP" armbands. Their roles included rounding up soldiers who had abandoned their duties, guarding enemy prisoners and prisoner-of-war camps, and investigating cases of desertion (leaving without permission) and draft evasion (avoiding a national call to duty). The navy had a similar program called Shore Patrol, in which sailors maintained order and discipline particularly between off-duty sailors and civilians. None of these programs were permanent parts of the military.

As the United States got ready for World War II, the U.S. Department of War created a permanent Military Police Corps in September 1941, less than two months before the Japanese attack on Pearl Harbor. This was the beginning of a permanent military police force with an MP training program. Over two hundred thousand military personnel served as MPs during the war.

Military police were responsible for keeping order and enforcing discipline throughout the remainder of the twentieth century and into the new millennium. MPs also provide security for military facilities, including those near combat zones, and guard prisoners of war.

To operate swiftly wherever military personnel were stationed, the system had to be mobile and function in combat conditions. Given these various characteristics of the military justice system, one major result was how the same crime might have very different punishments based on the location where the offense was committed and the military offender's commanding officer.

Military justice reform

During World War II the public often viewed military justice as unjust, too harsh, and following no set pattern. Many wanted military justice to be more like civilian procedures and Congress reorganized the military in 1947 into a department of the federal government, called the Department of Defense. Instead of separate justice systems for the army, air force, navy, and marines, there would be one military justice system run by the Department of Defense. During this time, European countries also reorganized their military justice systems, to be more like civilian courts.

Congress passed the Uniform Code of Military Justice (UCMJ) in 1951, a common criminal code for all military services. The military courts, also known as tribunals, explain and enforce these laws. The new codes took away some of the influence of military commanders over the judicial system. Over the next several decades the military system became more like civilian courts, however, the UCMJ maintained the important need for conducting speedy trials and handing out clear and predictable rulings to maintain order.

According to the codes, crimes such as murder, robbery, assault, and rape by military personnel against civilians are tried in the civil criminal justice system. If a military person commits a crime against another military person, the case is tried in military courts. If the crimes are committed against citizens of other countries when the United States is stationed abroad, the U.S. military tries to maintain jurisdiction through treaties with foreign countries.

Throughout the second half of the twentieth century the U.S. Supreme Court still rarely interfered with the military process. One unusual instance was a ruling in 1969 when the Supreme Court overturned a court-martial verdict, stating that the military did not have jurisdiction over a soldier who committed a felony against a civilian away from a military base. In most cases though, the Supreme Court almost always lets military decisions remain in effect due to what it considers "military necessity."

A key ruling came in 1981 by the U.S. Court of Appeals for the Armed Services. The court ruled that the protections of the first ten amendments of the U.S. Constitution, known as the Bill of Rights, fully applied to military service members. These protections included freedom of speech, freedom from illegal search and seizure, and freedom from self-incrimination. The courts, however, have defined these protections to military justice only in very general ways instead of specific findings.

Like the Supreme Court, Congress has rarely used its constitutional authority to interfere with the military justice system. Public interest in military law only occurs during controversial or highly publicized cases. One such case came in 1971 when Lieutenant William Calley was convicted in the killing of five hundred unarmed civilians in the village of My Lai during the Vietnam War (1954–75; a controversial war in which the United States aided South Vietnam in its fight against a takeover by Communist North Vietnam). Calley was sentenced to life in prison, though he was paroled a short time later (some people felt that he was unfairly singled out and blamed for the killings). Otherwise the public pays little attention to the military judicial system, so there has been little pressure to reform. Military justice is relatively free of public scrutiny or interest.


A court-martial is a military court of officers appointed to try a person accused of seriously violating military law. The offender appears before a court of several military officers who will decide his or her case. There are three different types of court-martial—summary, special, and general.

Summary court-martials hear minor offenses committed by enlisted men and women, not officers. Sentences cannot exceed one month of confinement, forty-five days of hard labor, limited pay loss, or a reduction in military rank. The process is simple and does not provide legal safeguards for the accused such as an attorney. For this reason, summary court-martials can only be conducted if the accused has agreed to the proceedings.

In summary court-martials, the trial is conducted by one military officer. This kind of proceeding has declined in recent years and been replaced by administrative proceedings before the defendant's commander. The commander can impose fines or a reduction in rank.

The second type or special court-martial can hear all types of offenses and be assembled by lower ranking commanders. These cases are run by a military judge and three military service members, unless the accused requests only a judge alone. The three members serve as a jury to determine guilt and decide a penalty. Penalties from special court-martials can include imprisonment up to six months, three months of hard labor, a fine, or a "dishonorable discharge." Dishonorable discharges force defendants to leave the military, often with the loss of military benefits such as special insurance policies and retirement funds.

The third kind of court-martial is the general court-martial, which tries major felonies and hands down the harshest punishments. By the early twenty-first century, general court-martials were the most frequently used proceedings, consisting of a military judge and five military members as a jury. Like special court-martials, defendants can request a judge with no jury.

Unlike other court-martials, however, general court-martials can only be convened by high-ranking government officials such as the U.S. president, the secretary of a federal department (like the secretary of defense), or a commander. Defendants are allowed an attorney, who must be a military lawyer, and a detailed record of the court proceedings is kept like in civil courts. General court-martials can impose the death penalty, high fines, imprisonment, and dishonorable discharges.

The court-martial process

The modern court-martial process still relies heavily on a military commander's decisions. The commander can order criminal investigations, issue search warrants, send the case to trial, select jurors, and change the court's results. The military judicial process also includes legally trained attorneys and judges, a jury, a thorough appeals review process, and allows a greater degree of legal representation than civilian courts.

To initiate a court-martial trial, a military commander receives a report of wrongdoing from military or civilian law enforcement. The commander decides whether to pursue a trial, dismiss the charges, or handle the alleged violation through a less formal process.

No bail (the money a defendant pays to be released while awaiting trial) exists in military courts. If the commander/judge decides to confine the accused until trial, the decision is reviewed in a hearing where the defendant and his or her attorney can participate. Military attorneys are provided free of charge to all defendants for every phase of a trial. Defendants can also hire private civilian attorneys to represent them.

If a commander decides to pursue a court-martial, a pretrial hearing (similar to a grand jury proceeding in civilian law) is held in which the prosecution's evidence is presented. In these hearings, a military defendant has greater rights than in civilian criminal law. Unlike civilian grand juries, military pretrial hearings are not closed to the defendants and his or her lawyer can cross-examine witnesses and introduce evidence as well. The commander then decides whether to proceed with a trial.

Court-martial trials begin within 120 days of initial imprisonment. The commander who ordered the trial also selects the five commissioned officers to compose the jury. The jurors must have a higher military rank than the defendant. Enlisted servicemen and servicewomen may request that part of the jury have enlisted personnel as well. The military judge is a senior judge advocate officer assigned by JAG. The process resembles a civilian trial except it proceeds much quicker.

Military judges can enforce the Fourth Amendment safeguard against unreasonable searches and seizures by ruling out certain evidence acquired by the prosecutor. In the military, however, evidence discovered during normal inspections of living quarters and duty stations can be used at trial. Unlike civilian judges, the military judge can also question witnesses during the trial. Another difference is that it takes just two-thirds of the jury to determine guilt, while it takes all jurors to agree on a verdict in a civil trial.

The punishment process in court-martials is different than in civilian court. The defendants are still protected against cruel and unusual punishment but sentencing normally occurs immediately upon the determination of guilt. No separate report is prepared for the sentencing phase like in civilian courts. Nonetheless, the defendant's background information is presented, including past arrests or disciplinary actions, and the defendant has a chance to speak. The same jurors who heard the case determine the sentence.

In military justice, there are no mandatory sentencing guidelines. The court has considerable flexibility in deciding a sentence. Choices include a prison sentence, the death penalty, a fine, loss of pay, or discharge from the service. There is no probation (a sentence other than imprisonment) in military justice, but there is parole (early release from serving a full sentence). Defendants given long prison sentences are sent to the military prison in Fort Leavenworth, Kansas, or to a federal prison; those with shorter sentences are held at U.S. military bases.

For all court-martial trials a judge advocate reviews the trial records to ensure the court followed proper procedures. At this time, defense attorneys can submit requests for lighter sentences or overturning convictions. For sentences longer than one year or for service discharges, the Court of Criminal Appeals automatically reviews the cases. Three judges hear arguments by both sides and once again the record is reviewed. Defendants may even appeal to the U.S. Court of Appeals for the Armed Forces and to the U.S. Supreme Court.

Military appeals courts

The original 1951 UCMJ codes created a civilian appeals court to hear military cases called the U.S. Court of Appeals for the Armed Forces. The court originally had three judges and later expanded to five. Like other federal judge positions, the U.S. president appoints these judges and the Senate approves them. This court hears cases sent by JAG, all death sentence cases, and some appeals submitted by those convicted in lower courts. It has worldwide jurisdiction since cases can come from any place around the globe where U.S. troops are deployed.

The U.S. Court of Appeals for the Armed Forces serves as a civilian safeguard on the military judicial process. Its decisions may be appealed to the U.S. Supreme Court. A major difference between this court and civilian courts is that the military judges do not have lifetime appointments. Instead they serve fifteen-year terms.

Congress passed the Military Justice Act of 1968 creating intermediate appellate military courts located in each military service. Originally called the Courts of Military Review, they were renamed Courts of Criminal Appeals in 1995. JAG appoints the judges, who are trained attorneys, not commanders, and who do not have fixed terms. The appellate courts review all cases where the accused was sentenced to over a year of confinement, was given the death penalty, lost his or her rank as a commissioned officer, or was discharge dishonorably. The courts can drop the charges, reduce the sentence, or order a new trial.

Native American justice systems

Prior to the European settlement of North America in the early seventeenth century, many long-established Native American groups handled justice through traditional means. Rather than two sides presenting arguments before a judge, Native Americans preferred both sides reach an agreement together. In the early twenty-first century, about 560 federally recognized tribes use traditional methods to resolve disputes and address criminal activity. The tribes are quite different in population size, structure, culture, language, available funding, and even traditions.

Limited criminal jurisdiction

Native Americans and white Americans do not use the same kinds of punishment, due to cultural differences. In the 1880s the Lakota tribe in South Dakota resolved a murder case through traditional tribal means. The murderer was required to provide the victim's family with goods and provisions. Though the family was satisfied with the outcome, the U.S. Department of the Interior, which oversees tribal matters, was not.

The Department of the Interior pressed for extending U.S. criminal jurisdiction into Indian Country for major criminal offenses. Congress passed the Major Crimes Act of 1885 to extend U.S. jurisdiction over seven major crimes committed in Indian Country. The crimes were murder, manslaughter, arson, burglary, and various forms of assault. The list of crimes was later expanded to include twelve crimes, including rape.

The General Crimes Act, first passed in 1834, established U.S. jurisdiction over crimes involving Native Americans and non-Indians. If an Indian robs a non-Indian on a reservation,

U.S. criminal jurisdiction applies. If the Native American commits the same crime against another reservation member, then tribal courts handle the case.

The biggest change in tribal criminal justice came in 1934 when Congress passed the Indian Reorganization Act. The act encouraged tribes to establish governments modeled after the U.S. justice systems. These new governments replaced traditional tribunals and their practices, using the adversarial or two-party system of U.S. courts. Many of the tribes adopted new tribal constitutions but could not afford to operate as independent court systems. They relied on the U.S. Bureau of Indian Affairs (BIA) to provide a judicial system.

Tribal criminal justice

By the early twenty-first century, some 275 Native American tribes had their own formal tribal court systems. Each tribal court was unique in how it operated and the laws it enforced. Most tribal courts tended to be less formal than U.S. courts; many did not keep formal court records like U.S. justice systems.

Though tribal courts had been patterned after U.S. criminal courts, by the late twentieth century many had begun returning to traditional methods of solving disputes through tribal elders and other community-based approaches. Some tribes adopted a combination of the two systems, using tribal courts for more serious criminal offenses.

As some tribes gained greater economic standing through the twentieth century, they could afford to operate their own governmental services, including criminal justice systems, rather than relying on the BIA. Jurisdiction for criminal cases in Indian Country is determined by the race of the accused and the victim and whether the crime is a felony or misdemeanor. Tribal courts hold criminal jurisdiction over their own members and other Native Americans on their lands. In many cases, sentences are less than one year and fines are kept below a certain amount.

In addition to the crimes identified in the Major Crimes Act, the United States holds jurisdiction over non-Indians who commit crimes against Indians on reservation lands as well as crimes committed by Native Americans against non-Indians. The only authority a tribe has against a non-Indian is to banish the person from the reservation. State laws generally do not apply to tribal members in Indian Country. Similarly, tribes hold civil jurisdiction in almost all cases over Native Americans and non-Indians on reservations. In resolving cases, tribal courts first look to tribal codes, then to federal, and finally to state law for guidance if no tribal code applies.

High crime rates

In the late 1990s as violent crime was decreasing in the general U.S. population, it dramatically increased in Indian Country. Indian Country had almost twice the crime rate as the entire national population. The murder rate in particular was three times higher than for the U.S. population in general. The Fort Peck Reservation had a murder rate double that of the city of New Orleans, which had the highest murder rate among U.S. cities.

Gang and domestic violence, aggravated assault, sexual assault, and child abuse were also rising sharply on tribal lands. The U.S. Department of Justice called the situation a public safety crisis. Among the many different racial and ethnic groups in the United States, Native Americans had one of the lowest life expectancy rates, due in large part to violence and crime contributing to these numbers.

Law enforcement in the remote rural areas where most tribal lands are found was spread very thin. In 1996 Indian Country had a total of 135 tribal law enforcement agencies and over 1,700 officers, along with 339 full-time BIA officers. Indian Country had 1.3 officers for every one thousand tribal members compared to the national average of 2.9 officers for every one thousand U.S. citizens. Many of these officers patrolled remote areas alone, a very dangerous situation.

In addition to law officers, there were only 78 full-time BIA and 90 tribal criminal investigators and just over 100 FBI agents available nationwide to Indian Country. Some seventy poorly funded and aging jails were located on fifty-five reservations, most holding only between ten and thirty inmates. Most were built in the 1960s and 1970s and had major problems. The jails held some 1,700 inmates in 1999, with forty-eight operated by tribes and the remainder by BIA or private operators. Only ten of these facilities were for juveniles; most housed juveniles along with adults. Programs for education and substance abuse hardly existed. In some cases, jail staffers had to buy necessities such as soap and toothpaste for inmates out of their own personal funds. Few of these staff members ever received professional training.

Given the dire conditions in Indian Country judicial systems overall, Congress increased funding for a newly created Tribal Courts Program to improve tribal judicial systems. In some cases money was available for intertribal courts, so more than one tribe could share a judicial system. Other funding went to help with tribal caseloads; revise and update tribal criminal codes and operating rules; hire more investigators, prosecutors, defense lawyers, and judges; create better record-keeping systems and buy fireproof storage cabinets; purchase more legal library materials; and make training and technical assistance programs available to tribes.

For More Information


Bachman-Prehn, Ronet D. Death and Violence on the Reservation: Homicide, Violence, and Suicide in American Indian Populations. New York: Auburn House, 1992.

Belknap, Michal R. The Viet Nam War on Trial: The My Lai Massacre and the Court-Martial of Lieutenant Calley. Lawrence, KS: University Press of Kansas, 2002.

Davidson, Michael J. A Guide to Military Criminal Law. Annapolis, MD: Naval Institute Press, 1999.

Davis, Mary B. Native America in the Twentieth Century: An Encyclopedia. New York: Garland Publishing, Inc., 1994.

French, Laurence, ed. Indians and Criminal Justice. Totowa, NJ: Allanheld, Osmun Publishers, 1982.

Lowry, Thomas P. Don't Shoot That Boy! Abraham Lincoln and Military Justice. Mason City, IA: Savas Publishing Co., 1999.

Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press, 1987.

Web Sites

National American Indian Court Judges Association. (accessed on September 1, 2004).

National Institute of Military Justice. (accessed on August 20, 2004).

U.S. Department of Tribal Justice, Office of Tribal Justice. (accessed on August 20, 2004).