--- Am. Tribal Law ----, 2026 WL 579517 (Fort Peck C.A.)
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Fort Peck Court of Appeals.

THE FORT PECK TRIBES, Appellant,
v.
JENNIFER JONES, Appellee.

CAUSE NO. AP # 896
|
MARCH 02, 2026
|
February 27, 2026

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

ORDER DISMISSING APPEAL AS MOOT

BACKGROUND

¶ 1 This matter comes before the Fort Peck Court of Appeals (FF’COA) on an appeal filed by the Fort Peck Tribes (Tribes) from the Tribal Court’s dismissal of a criminal count of Partner or Family Member Assault under 7 CCOJ 244(a)(1). The Appellee (Defendant at trial) allegedly punched her sister. The sister was taken to the Poplar emergency room where she was intubated and air transported to another medical facility. Based on that apparent medical seriousness, the Tribes also charged the Appellee with felony Aggravated Assault under 7 CCOJ 244(a) for the same incident.

¶ 2 The Tribal Court, however, determined that prosecuting both crimes for the same conduct would violate the Indian Civil Rights Act’s (ICRA) prohibition on double jeopardy and thus dismissed the Family Member Assault Count, leaving only the Aggravated Assault Count for trial. Discovery for the Aggravated Assault Count revealed that the victim was intubated and air lifted to another medical facility for a separate medical condition unrelated to the assault. The victim’s injuries caused by the Defendant’s assault were only “superficial.”

¶ 3 Lacking a “serious bodily injury” to prove Aggravated Assault, the Tribal Prosecutor amended the Tribes’ Complaint to charge misdemeanor Partner or Family Member Assault in violation of 7 CCOJ 244(a)(1). The Defendant agreed to plead guilty to that charge in exchange for the prosecutor’s sentence recommendation of time served, which the Tribal Court accepted, and the Defendant was released on her 59th day of incarceration. See Case # 08202-25-07, Tribal Court Final Disposition (Sept. 9, 2025).

¶ 4 That seems like a natural end to the case. Except that one week earlier, the Tribes asked the FPCOA to review the Tribal Court’s double jeopardy ruling and dismissal of the original Family Member Assault count. See Fort Peck Tribes v. Jennifer Jones, Notice of Appeal AP # 896 (Sept. 2, 2025). Io date, the Tribes have not withdrawn their appeal. Nor have the Tribes given us notice of the Appellee’s plea agreement and conclusion of her case. Thus, on November 3, 2025, we granted the Tribes’ appeal and sot a briefing schedule. See Fort Peck Tribes v. Jones, Order Graning Appeal AP # 896 (Nov. 3, 2025).

¶ 5 Despite the changed plea, sentencing and Defendant’s service of the sentence, both parties filed briefs with this Court. The Tribes’ brief argues that the Tribal Court erred in dismissing the original Family Member Assault count based on double jeopardy. The Appellee’s brief argues that the Tribes’ appeal is moot because her case has concluded. Neither party addresses the other’s arguments.

¶ 6 The Appellee’s mootness argument relies on an American law treatise and United States v. Sanchez-Gomez, 584 U.S. 381 (2018), which both address the United States Supreme Court’s interpretation of the federal Constitution’s Art. Ill requirement for a genuine “case or controversy.” We are neither a federal court nor are we bound by the federal Constitution. The Tribes’ Constitution contains no language like Art. III. The Tribal law that created the FPCOA contains no language like Art. III. See 2 CCOJ 201. That means federal decisions creating and interpreting the so-called “case or controversy” requirement of Article III is not binding on us. And we must be alert to the subtle colonialism that lurks in the unquestioned adoption of federal and state law doctrines into tribal jurisprudence. At the same time, it makes no sense to reject a logical solution or approach simply because another court used it first.

¶ 7 We do agree with the spirit of the federal courts’ mootness doctrine: the cases coming to the FPCOA should be live controversies with real consequences. We see the disadvantages of issuing “advisory opinions” on legal questions where no person’s interest is really at stake. On the other hand, our caseload is modest because the tribal population is small, and frequently legal questions arise that have no tribal precedent to guide parties, advocates, attorneys and Tribal judges.

¶ 8 For example, in the last year this Court has received several briefs noting Tribal Court rulings raising double jeopardy concerns. This case is one of those, and the government has raised an ostensibly legitimate question. It makes little sense to let two or three or five more defendants think they have protections they don’t, or to leave the Tribal Court facing recurring arguments without our direction. We note that one of several exceptions to the federal Mootness Doctrine is the chance for issue recurrence. See Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 202 (2000) (holding that defendant’s voluntary cessation of unlawful activity must make absolutely clear that violations could not reasonably be expected to recur in order to moot a suit for permit violations).

¶ 9 Therefore, we are addressing the arguments made by the parties related to the double jeopardy claim, after addressing a threshold jurisdictional question.

JURISDICTION

¶ 10 Neither party questions whether the FPCOA has jurisdiction over a prosecutorial appeal where there was no verdict because the charge was dismissed pretrial for lack of probable cause. We address the issue nonetheless because we have an independent responsibility to ensure our jurisdiction over the Parties and the subject matter of the appeal.

¶ 11 The Fort Peck Code of Justice provides defendants convicted of a crime in Tribal Court with an appeal as a matter of right. See 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. See Fort Peck Tribes v. Scheaffer, AP # 892, ¶ 2 (2025), 2025 WL 2443483, 1.

¶ 12 On the other hand, the Code treats the governmental prosecutor—the Fort Peck 7rides (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. See 2 CCOJ 205(a). However, the Code specifically allows Tribal appeals of not guilty verdicts issued by a Tribal judge in bench trials. Id.

¶ 13 The Code does not explicitly address the situation in this case where the dismissal occurred pre-trial before any verdict was rendered. However, our decision in Fort Peck Tribes v. Mark Charette, 1988 WL 1743251 (Fort Peck C.A. 1988), is instructive. In Charette, as trial began the defendant’s lay counselor moved to dismiss because the defendant had not been arraigned on the amended complaint. The counselor refused to stipulate to the arraignment and allow the trial to proceed at that moment. The Tribal Court denied the motion and the prosecutor put on two witnesses. The defendant’s counselor then renewed his motion to dismiss on due process grounds, and the Tribal Court granted it without prejudice. The defendant was later arraigned, tried and found guilty by the jury. On appeal, we held that despite the initial trial having commenced, ICRA’s double jeopardy prohibition did not bar retrial because there was no showing of bad faith on the part of the tribal judge or prosecutor. Id. at 6-7.

¶ 14 In comparison, Appellee’s situation is even further from double jeopardy than the defendant’s in Charette Hero, not only was there no judicial or prosecutorial bad faith alleged, but Appellee’s motion to dismiss was made before trial. No argument or evidence whatsoever was put before a jury, and so of course there was no verdict rendered. Hence, jeopardy did not attach to the Tribal Court’s dismissal, and we have jurisdiction to hear the Tribes’ appeal of that final decision. See 2 CCOJ 202.

DISCUSSION

¶ 15 The Tribes’ Notice of Appeal lists three issues. The Tribes argue first that the Tribal Court erred in dismissing Count 1 of the Criminal Complaint, Partner or Family Member Assault under 7 CCOJ 244. on double jeopardy grounds. Second, the Tribes argue the Tribal Court’s decision disregarded the Tribes’ intent in enacting the two separate crimes charged here. Third, the Tribes ask that if this Court agrees with Appellant, we specifically limit our holding to the two crimes charged here. It is unnecessary to address the latter two issues because of our decision on the first issue.

¶ 16 The Fort Peck Comprehensive Code of Justice provides that “[n]o person shall twice be out in jeopardy for the same offense.” 6 CCOJ 501. Similarly, ICRA provides that tribes exercising powers of self-government shall not “subject any person for the same offense to be twice put in jeopardy,” 25 U.S.C. 1302(a)(3), which is clearly modeled upon the federal constitutional provision that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V.

¶ 17 The Parties cite no decisions of the FPCOA interpreting the CCOJ’s prohibition of double jeopardy, other tribal courts’ interpretations of other tribal law prohibitions of double jeopardy, or federal courts’ interpretations of ICRA’s double jeopardy prohibition. The Parties and the Tribal Court focused instead on the federal constitutional double jeopardy test set by the United States Supreme Court in Blockburger v. U.S., 284 U.S. 299, 304 (1932).

¶ 18 Before we address the Blockburger test, we note preliminarily that the United States Supreme Court has said the federal Constitutional guarantee against double jeopardy consists of three guarantees: protection from a second prosecution for the same offense after acquittal; protection from a second prosecution for the same offense after conviction; and protection “against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711,717 (1969). For clarity, we note that our discussion in the Jurisdiction section above and in Charette addressed situations related to the first and second guarantees. In contrast, the issue in this case implicates a version of the third guarantee: Appellee is effectively arguing she faces multiple punishments via separate charges for the same conduct, which she asserts should constitute only one offense.

¶ 19 In Blockburger, the defendant argued unlawful double jeopardy resulted when he was prosecuted for two separate crimes resulting from a single sale of forbidden drugs. The Supreme Court rejected his argument stating:

“Each of the offenses created requires proof of a different element. The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

284 U.S. at 304 (citing Gavieres v. United States, 220 U.S. 338, 342 (1911)). More recently, the Supreme Court has applied the Blockburger rule, see Brown v. Ohio, 432 U.S. 161, 168 (1977) (invalidating cumulative punishments for a greater (auto theft) and lesser (joyriding) included offense), and cited the rule approvingly, see Iannelli v. U.S., 420 U.S. 770. 785 n. 17 (1975) (noting Blockburger would allow prosecutions for a crime and conspiracy to commit the crime).

¶ 20 In our case, the Tribes evaluated the evidence and determined Appellee’s actions constituted two separate criminal offenses in the Code—Partner or Family Member Assault, and Aggravated Assault—and charged tier for both. The obvious overlap thus required the Tribes prove (in part) that Appellee committed assault to succeed on either or both counts. The Tribal Court was clearly troubled that “[b]oth counts [of the Criminal Complaint] describe one single act, an assault on Sonia Jones, Defendant’s sister.” Tribal Court Order of Dismissal 2. Emphasizing that both counts were based on that single act, Appellee convinced the Tribal Court that the Tribes were effectively putting Appellee at risk of double punishment for one offense, contradicting Blockburger’s rule. The Tribal Court’s Order concluded by noting “[b]oth charges ... have the same fact pattern to prove that involves assault.” Id. True, but that doesn’t constitute double jeopardy here.

¶ 21 The Tribal Court’s sole focus on the common element of assault in the two offenses ignored the other key elements that are not common. As relevant here, the offense of Partner or Family Member Assault requires proof that (1) the defendant intentionally caused bodily harm to a victim, and (2) that the victim is related to or the partner of the defendant. See 7 CCOJ 244(a)(1). There is no requirement to prove the victim suffered serious bodily harm. On the other hand, the offense of Aggravated Assault requires proof that the victim intentionally caused serious bodily harm to a victim. See 7 CCOJ 230(a). There is no requirement to prove the victim is related to or the partner of the defendant. Since each Code provision requires proof of a fact which the other does not, the Blockburger test is satisfied and there was no double jeopardy violation when the Tribes charged Appellee on both counts. The Tribal Court thus erred in dismissing Count 1 of the Criminal Complaint before trial.

¶ 22 A final observation. For double jeopardy purposes, charging a defendant with two offenses based on the same facts is different than imposing consecutive sentences for two guilty verdicts. Brown v. Ohio applied the Blockburger rule to invalidate cumulative punishments for one crime and a lesser included offense. 432 U.S. at 168. We express no opinion on whether and how Brown v. Ohio’s analysis might apply to Appellee’s sentence had her trial gone forward and she was found guilty on both counts charged here.

¶ 23 Therefore, while this matter has been disposed of by the Tribal Court, we issue this opinion to address the issues initially raised on appeal and clarify the parameters of the double jeopardy clause contained in ICRA and Tribal law.

SO ORDERED this 27 day of February 2026.

FORT PECK COURT OF APPEALS

Erin Shanley, Chief Justice

B.J. Jones, Associate Justice

James Grijalva, Associate Justice

All Citations
--- Am. Tribal Law ----, 2026 WL 579517