--- Am. Tribal Law ----, 2025 WL 2443483 (Fort Peck C.A.)
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Fort Peck Court of Appeals.

THE FORT PECK TRIBES, Appellant,
v.
DESIREE SCHEAFFER, Appellee.

CAUSE NO. AP # 892
|
AUGUST 7, 2025

Appeal from the Fort Peck Tribal Court, Judge Lonnie Headdress, Presiding.

ORDER REVERSING DISMISSAL OF CRIMINAL COUNT I & REMANDING FOR PRELIMINARY HEARING

BACKGROUND

¶ 1 This matter comes before the Fort Peck Court of Appeals (FPCOA) on an appeal filed May 30, 2025, from the Tribal Court’s Order issued on May 15. 2025, dismissing Count I alleging the Defendant was in unlawful possession of dangerous drugs with intent to sell in violation of 7 CCOJ 4 i3 B for lack of probable cause to support the charge.

¶ 2 The Fort Peck Tribal Code provides defendants convicted of a crime in Tribal Court with an appeal as a matter of right. Seo 2 CCOJ 205(a). This absolute right to appeal serves one of the tribal government’s highest priorities—protecting the liberty and property rights of the Tribes’ individual citizens. On the other hand, the Code treats the governmental prosecutor—the Fort Peck Tribes (Tribes)—differently. The Tribes have no guaranteed right to appeal criminal cases. In fact, the Code forbids the government from appealing a verdict of not guilty rendered by a jury of the defendant’s peers. Id. That accords with the Indian Civil Rights Act’s (IURA) prohibition against double jeopardy, See 25 U.S.C. 1302(a)(3). However, the Code does allow Tribal appeals of not guilty verdicts issued by a tribal judge in bench trials. 2 CCOJ 205(a). In some cases, that latter section may violate ICRA’s double jeopardy prohibition. Here, jeopardy did not attach in the proceedings below because the Court dismissed the charge based upon a lack of probable cause rather than upon a merits determination that the Defendant was not guilty.

JURISDICTION

¶ 3 Neither party raises the question whether this Court has jurisdiction over a prosecutorial appeal where there was no verdict because the charge was dismissed pretrial for lack of probable cause to proceed. The Code does not explicitly address that situation. However, the dismissal of a criminal complaint for lack of probable cause-either because the complaint’s allegations fail to show criminal conduct under the Fort Peck Code, or where the Tribes fail to demonstrate probable cause to proceed at a preliminary hearing--is a final order subject to appeal without running afoul of the ICRA prohibition against double jeopardy.

¶ 4 The Tribal Council could easily have prohibited prosecutorial appeals in all cases, as it did for not guilty verdicts rendered by juries. Yet, this Code provision makes clear the Council felt prosecutorial appeals are appropriate in criminal cases in at least one circumstance. It is possible the Council intended to limit prosecutorial appeals to that one circumstance. We think the better reading, however, is that prosecutorial appeals in criminal cases are appropriate in situations like this case where a criminal complaint is dismissed pre-trial based on an allegedly incorrect interpretation of the law.

DISCUSSION

¶ 5 The Tribes’ Notice of Appeal lists three issues on appeal. One is whether the Tribal Court improperly made factual inferences favoring the defendant. This Court did not request briefs from the parties, so we have no basis to address that issue, however this matter is resolved herein based on the other issues presented. The other two issues both focus on the proper reading and application of our decision in Fort Peck Tribes v. Hunter Lambert, AP # 865 (2024). Both the Tribal Prosecutor and the Defendant addressed Lambert in briefs submitted to the Tribal Court on defendant’s Motion to Dismiss.

¶ 6 When a criminal defendant files a motion to dismiss a complaint for lack of probable cause the Tribal Court may dismiss without an evidentiary hearing if the complaint, on its face, is deficient to charge criminal conduct under the Fort Peck Code. For example, if the Tribes charge unlawful possession of a substance that is not made illegal under Tribal law, the Court may dismiss that charge without addressing whether the Tribe can demonstrate probable cause to proceed on the complaint. However, if the probable cause challenge goes to the weight of the evidence, the best practice is for the Court to conduct a probable cause hearing, often referred to as a preliminary hearing, to allow the Tribes to demonstrate what evidence they have in support of probable cause. Probable cause is probably the lowest legal burden of persuasion recognized in the legal system as it only requires the Tribes to show that criminal conduct probably happened. In this case the Court did not conduct a probable cause hearing but instead relied upon the Tribes’ use of the term “residue” in the affidavit in support of the criminal complaint and the briefs submitted by the Tribes to find that the facts in this case fall under the rubric of this Court’s decision in Lambert.

¶ 7 Lambert dealt with a different crime than this case: Unlawful Possession of Dangerous Drugs in violation of 7 CCOJ 413-A. The Defendant was found in possession of three syringes and one small plastic bag with trace amounts of a white powder. Laboratory testing determined the “residue” inside was Methamphetamine. Lambert entered a conditional plea of guilty reserving the right to argue that residue alone, cannot sustain a conviction for Unlawful Possession of Dangerous Drugs. Lambert also challenged the justification for the search and seizure. The legal standard in Lambert involved beyond a reasonable doubt because the issue was raised during a plea proceeding. We reversed the conviction, holding that the residue only indicated the bag at one time held some amount of drugs, “but that alone cannot suffice” to establish a sufficient basis for a finding of guilty to the charge of possession of drugs because “minute amounts of drugs that are not usable or saleable do not endanger the health or welfare of the community.” Lambert at ¶ 15. It should be noted that Lambert did not deal with the probable cause standard and did not address the situation where other corroborating evidence may be indicative of possession with intent to sell. We remanded Lambert for application of the “amount” rule adopted therein. In this case, we are presented with a separate issue, which is whether there is sufficient probable cause to charge an individual who possesses residue with an intent to sell dangerous drugs in violation of 7 CCOJ § 413 B

¶ 8 In the Tribal Court, the Tribes correctly cited Lambert as requiring more than drug residue for a possession of dangerous drugs conviction. See Fort Peck Tribes’ Response to Defendant’s Motion to Dismiss, p. 3. The Tribes argued that in addition to a small bag with “white powder residue” that tested positive for Methamphetamine, there is “more” here to establish the intent to sell. A search of the defendant’s car also yielded a notebook allegedly showing amounts owed to Defendant from known drug users, a bag of syringe needles, two scales with “white powder residue,” and a second bag with “white powder residue.” In the affidavit in support of the criminal complaint, the Tribes alleged that the Defendant made certain admissions about having possessed methamphetamine, which may suffice for a possession of drugs charge but the question here is whether there was probable cause for an intent to sell those drugs. See Criminal Complaint, Cause No. 0263-25-03, at 1. We did not address what evidence could corroborate a possession with intent to sell charge in Lambert when the substance seized is residue only.

¶ 9 The legal issue here is thus whether the Tribes can demonstrate that there was probable cause to believe that the Defendant possessed methamphetamine with the intent to distribute it. That is the probable cause standard, 6 CCOJ 201(c), and so with one important caveat, it is possible that the Tribes could have demonstrated probable cause from the other evidence seized from the Defendant and her admissions to bind the Defendant over for trial on Possession of Dangerous Drugs with Intent to Sell in violation of 7 CCOJ 413-B.The important caveat is that the Code makes clear the Intent to Sell crime rests on possession of dangerous drugs. See 7 CCOJ 413-B(a) (“a person commits the offense of unlawful possession of dangerous drugs with intent to sell if he/she possesses any of the dangerous drugs defined in Section 413(a) of this Title”) (emphasis added). So other evidence of alleged intent to sell or packaging to sell would not salvage the complaint it the Tribes cannot demonstrate the possession element of the offense. We have made clear the amount of drugs possessed must be usable or saleable to sustain a possession charge, Lambed at ¶ 15, so that is the standard to be utilized in assessing probable cause for possession with intent to sell.

¶ 10 The Tribes’ characterization of the amounts in the bags and scales as “residue” in their brief in opposition to the motion to dismiss is unfortunate because it implies a failure to meet the Lambert standard. We can understand that from the defendant’s perspective, saying the government seized “residue” seems like an admission that the Tribes cannot prove a usable or saleable amount, particularly in support of the defendant’s intent to sell. However, the Tribe’s position is that the other evidence seized from the Defendant is sufficient to support, not only possession of dangerous drugs, but also intent to sell. The Tribal Court, however, granted Defendant’s Motion to Dismiss for Lack of Probable Cause without a preliminary hearing so the prosecution had no opportunity to show probable cause to believe that all the white residue was Methamphetamine and collectively amounted to a usable or saleable amount, or that there was other sufficient evidence of possession of a useable or saleable amount that could establish probable cause with an intent to sell.

¶ 11 The Tribes did not request a preliminary hearing on that factual question once the Defendant motioned to dismiss under Lambert. That may be because the Fort Peck Tribes’ Criminal Trial F’rocedures lack an explicit provision on preliminary hearings. Specific preliminary hearing provisions are common in other tribal courts as a way to protect a Defendant from having to defend a charge at trial when probable cause does not exist or to permit the Tribes to produce the evidence in support of the complaint to a Judge or magistrate. The Indian Civil Rights Act does not mandate preliminary hearings but they are an effective way of weeding out complaints that should not proceed to trial see. e.g., Walker v. Hualapai Tribe. 2007 Hualapai Tribal Court LEXIS 1 (Court vacated conviction holding that the lack of a preliminary hearing was a ground to consider in overturning the conviction because of the serious nature of the charges of child sexual abuse). State courts routinely provide them, see, e.g., MCA 46-10-105, as do federal courts, see. e.g. Fed. R. Crim. Proc. 5.1. It should be noted that we are not holding probable cause or preliminary hearings are mandatory in the Tribal Court, but only that when a probable cause challenge is mounted that pertains to the weight of the evidence, preliminary hearings can assist the Tribal Court in more effectively protecting the defendant’s and the community’s interests.

¶ 12 Title 6 Trial Procedures of the Fort Peck Code, though, has a gap-filling provision. Section 510(b) provides that “[w]hen necessary,’’ the Tribal Court “will” supplement the Tribal rules with the Federal Rules of Criminal Procedure. Federal Rule 5 1 requires a preliminary hearing for felonies unless the Defendant waives it. Preliminary hearings are a fairer and more efficient allocation of judicial resources in the long run, dismissing cases lacking probable cause early and facilitating plea deals before full trials. As a general observation, wo believe Tribal Courts will usually find a preliminary hearing necessary when a criminal Defendant or the prosecutor requests one and there are disputed factual questions.

¶ 13 Considering the significant factual question here regarding whether Defendant possessed enough Methamphetamine for prosecution for intent to sell, as well as the other evidence that may corroborate possession with intent to sell, we hold that the Tribal Court should have granted the Tribes a chance to prove why Lambert does not govern this case and/or whether they can prove by probable cause the requirements under Lambert in addition to the element of intent to sell. We remand for a preliminary hearing on whether the Defendant actually possessed a useable or saleable amount of dangerous drugs with intent to sell when arrested.

¶ 14 To assist the parties and the Tribal Court, we note some confusion over what “more” than residue Lambert requires. The Lambert Defendant had three syringe needles and that was insufficient. We recognize that such drug paraphernalia facilitates the and use and/or distribution of dangerous drugs and in that sense undermines public health welfare. The Code however addresses these risks: 7 FPOC 417 makes unlawful the possession, sale, trade or barter of drug paraphernalia.

¶ 15 The argument that residue plus some paraphernalia equals possession of dangerous drugs with intent to sell seems to bootstrap the misdemeanor crime into the felony one if the pipe or scale has a few residue particles. Recognizing that dangerous drugs can and are having tragic impacts on our community, and we must solve this crisis, we don’t believe the Tribal Council intended to hide in the Code a way to convert a misdemeanor to a felony if law enforcement found a used pipe.

¶ 16 Therefore, we REVERSE the Tribal Court’s Order Dismissing Count I of the Complaint, Unlawful Possession of Dangerous Drugs with Intent to Sell in violation of 7 CCOJ 413-B, and REMAND for the Court to conduct a hearing to permit the Tribes to demonstrate its probable cause to proceed on the complaint for the charge of Unlawful Possession of Dangerous Drugs with Intent to Sell. While we take no position at this point whether a preliminary hearing will change the outcome here, holding the hearing will provide the Tribe with an opportunity to present their evidence to the Court to determine whether or not it is sufficient to meet the probable cause standard for the elements of the crime charged.

SO ORDERED this 7th day of August 2025.

FORT PECK COURT OF APPEALS

Erin Shanley, Chief Justice

D.J. Jones, Associate Justice

James Grijalva, Associate Justice

All Citations
--- Am. Tribal Law ----, 2025 WL 2443483