--- Am. Tribal Law ----, 2025 WL 3143333 (Fort Peck C.A.)
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Fort Peck Court of Appeals.

FORT PECK TRIBES, Appellant
v.
Chandler LONGTREE, Appellee.

CAUSE NO. AP # 891
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Signed November 6, 2025
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FILED NOVEMBER 10, 2025

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

ORDER REVERSING LOWER COURT DISMISSAL AND REMANDING

BACKGROUND

¶ 1 This matter comes before the Fort Peck Court of Appeals (FPCOA) on a notice of appeal filed by the Tribes from an order dismissing for lack of probable cause a criminal complaint charging the Appellee with a violation of 7 CCOJ § 227(c), Aggravated Sexual Abuse of a Child, for the Tribes’ alleged failure to demonstrate in the complaint that the minor victim was in the “care, custody, control, or supervision” of the Appellee at the time of the alleged offense. For the reasons stated herein this Court concludes that the lower court erred in dismissing for lack of probable cause the criminal complaint and remands to the lower court with instructions.

STATEMENT OF JURISDICTION

¶ 2 Pursuant to CCOJ Title II, Chapter 2, § 202, the jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Tribal Court’s Judgment dismissing for want of probable cause the charge against the Appellee is a final order subject to review of the Court of Appeals. Pre-trial dismissals of criminal complaints are generally without prejudice dismissals and thus do not constitute acquittals for purposes of double jeopardy analysis.

STANDARD OF REVIEW

¶ 3 This Court reviews de novo all determinations of the lower court on matters of law but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. 2 CCOJ § 202.

FACTS

¶ 4 On January 18, 2025 the Appellant filed a criminal complaint charging the Defendant with a violation of 7 CCOJ § 227(c) for allegedly engaging in sexual contact with an intoxicated 16-year-old child1 “while she was under physical control of the Defendant.” The ordinance in question provides as follows:

Sec. 227. Aggravated sexual assault of a child.

Any person who commits sexual assault as defined in Section 226 of this Title where the victim is under eighteen (18) years of age and where any one of the following additional factors is present: (a) The victim is under sixteen (16) years of age; (b) The offender is the natural or adoptive parent, grandparent, sibling, aunt, or uncle of the victim; (c) The offender has temporary or permanent care, custody, control, or supervision over the victim; (d) There were repeated assaults over a period of time; (e) Force or threats were employed during the assault is guilty of aggravated sexual assault of a child.

Aggravated sexual assault of a child is a felony.

¶ 5 Although the Ordinance seems ambiguous, we hold that the five subsections of § 227(c) should be construed as being in the alternative, and not as factual predicates for every allegation of a violation of the Ordinance. Even though the Ordinance does not use the term “or,” the five subsections are preceded by the phrase “where any one of the following additional factors is present.” Id. (emphasis added). That language makes clear that only one additional factor is required to prove aggravation. Furthermore, it would make no sense for the Ordinance to be construed as requiring each element of the subsections to be an element of the offense. Subsection (a), for example, seems to be a strict liability offense with no requirement to show any other criminal conduct if the victim is under 16.

¶ 6 The complaint against the Appellee charges criminal conduct under subjection (c) of the Ordinance. That subsection clearly, by use of “or”, permits the Tribes to charge criminal conduct if any of the requisites under (c) are met, combined with a sexual assault as defined under § 226. The criminal complaint alleges that a video exists showing that the Appellee engaged in a sexual act with a 16-year-old in his bedroom. It does not allege that the victim was in the “legal custody” of the Appellee at the time of the commission of the offense, but does allege that the minor was intoxicated to the point of having passed out and is premised upon a statement she made to medical providers that she does not remember how she came to be in the Appellee’s bedroom.

¶ 7 The Appellee filed a motion of dismiss for lack of probable cause on March 12, 2025, arguing that the Tribes had failed to allege criminal conduct under subsection (c) because the complaint did not allege that the victim was in the custody or control of the Appellee at the time of the offense. The Tribes filed a responsive brief in opposition. The Tribal Court did not conduct an evidentiary hearing but instead relied upon briefing by each side. On April 17, 2025, the Court dismissed the complaint for lack of probable cause. Although the Court did construe the subsections of the ordinance as being in the alternative, and did note that the Tribes were charging the Appellee under subsection (c), the Court held that the issue of “care, custody, control or supervision” was to be determined based upon whether the parent or legal guardian had consented to the child being with the alleged perpetrator, and since the complaint did not allege consent such probable cause was lacking. The Court thus dismissed the charge without prejudice. It appears that the Tribes then refiled the charge under a different Ordinance, but also decided to appeal the dismissal, which is within its rights since probable cause determinations are not equivalent to acquittals under the Indian Civil Rights Act, 25 U.S.C. § 1302 et seq.

LEGAL ANALYSIS

¶ 8 The Tribes argue on appeal that Tribal Court erred when it equated the “care, custody, control or supervision” issue to be controlled exclusively by whether the parent or guardian of the alleged victim consented to the child being with an alleged perpetrator. This Court agrees and finds for purposes of assessing probable cause the only inquiry is whether the Tribes had sufficient evidence to support a finding that it was probable that the Appellee committed a violation of the Ordinance. The criminal statute in question is similar to the federal statute incorporated into the Major Crimes Act at 18 U.S.C. § 2243. Under that statute the federal courts have generally found that minors are under the control of an adult when the minor is left alone with an adult even though the parents have not expressly consented to such. See United States v. Werk, 2025 US APP LEXIS 17434. In that case the Defendant was charged with transporting the minor to an educational program and in the course of that transport engaged in sexual acts with the child. The decision did not turn on the issue of whether the parent or guardian of the child expressly consented to the child being transported by the perpetrator.

¶ 9 In this case the minor victim was allegedly so intoxicated that she passed out and the Appellee allegedly engaged in a sexual act with her while the child was in his bedroom. The Court dismissed the complaint finding that there was no proof that the parents of the child consented to the child being with the Appellee and that this foreclosed the complaint. The lower court ignored the fact that the Ordinance refers to “care, custody, control or supervision,” implying that there are different levels of control over a victim. Had this been a situation where the Tribes’ only charge was premised upon the child being in the “custody” of the Appellee, the Court could understand the Tribal Court finding that such did not exist. However, the Ordinance also refers to “control” over the victim. The Appellee had her in his bedroom while she was intoxicated and allegedly engaged in sexual acts with her there. The Tribes need not prove that a parent or custodian of the child consented to the child being in that bedroom while intoxicated to sustain a probable cause finding.

¶ 10 In the Court’s defense, however, this Court can see situations where this issue may be subject to dismissal at the probable cause stage. For instance, it may be different had the alleged victim in this case been with the Defendant voluntarily, had not been intoxicated, and wound up in his bedroom and engaged in sexual acts with him. She was in that scenario in his control as she was with him at his house, but to find that this is a criminal act under this Ordinance would be changing the Tribes’ age of consent from 16 to 17. That is not the case in this matter however as the Tribes contended that it could prove that the victim was 16, was highly intoxicated, and was in the Appellee’s bedroom without her knowledge. How she got there and whether the circumstances of how he got that “control” over her should be a jury or judge issue at trial and not a probable cause determination.

ORDER

¶ 11 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this Court REVERSES the Tribal Court’s dismissal of the complaint for lack of probable cause and remands to the Tribal Court for further consideration consistent with this order.

SO ORDERED the 6th day of November 2025.

All Citations
--- Am. Tribal Law ----, 2025 WL 3143333

Footnotes
1	The Appellee in his motion to dismiss and response brief to this Court alleges that the victim was 17 years of age at the time of her interview 5 days after the alleged crime. This Court does not find that issue to be dispositive herein and it appears clear from the briefs below that the Appellee was using the wrong date of birth for the victim.