Military and Native American 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.