ROCKY BOY'S RESERVATION — On the wall inside her home on the Rocky Boy’s Reservation, Janet Bacon Sutherland has a collage of family photos, many of which include her son Elias.
"He used to come through the front door all the time and had the biggest smile on his face. He'd always say 'Good morning, mom' and give everybody hugs. I mean, every morning. So when he passed away and the next day he wasn't coming in I saw his face and that big smile and that's what keeps me going,” said Bacon, struggling to hold back tears.
She said Elias was shot and killed in August of 2021 and a woman was caught shortly after, but as of Wednesday was only in jail on a charge of firing a gun - even though, Sutherland said, there were other pending charges including negligent homicide.
"The criminal investigator here has told me that his case is closed and that he had given it to the FBI so I need to call the FBI and ask them. But the FBI continues to tell me that it's still an open investigation,” Sutherland explained.
MTN News tried to contact the reservation's prosecutor to confirm the woman was in jail, that she was charged with firing a gun in connection with this case, and to ask about the status of the other charges, but we have not yet received a response.
"Indian Country jurisdiction can seem complex, but once you actually get involved in it, it's really not hard to understand,” said Craig Overby, FBI Indian Country Special Jurisdiction Unit Chief.
Overby said federal law allows the agency to get involved in crimes committed on reservations because tribes have limited authority to sentence someone, and states can't get involved to prosecute because they don't have jurisdiction on most reservations.
"A lot of tribal courts, to abide by federal law, maybe the maximum sentence they can give to a person would be two years,” Overby explained.
Why do reservations have such little sentencing power? That’s dictated by federal law.
“In the past, and up to today, there are certain tribal courts in which the judge and, maybe, the advocates who basically serve as attorneys haven’t passed the bar or haven’t attended law school,” said Overby. “The tribal courts may not be as advanced or sophisticated as, say, the federal courts. So I think the purpose of some of those restrictions in the past has been waiting for the tribal courts to develop.”
Overby also pointed out, however, many tribal courts do have bar-certified attorneys and judges and efforts have been made to give tribal courts more sentencing power.
“For instance, the Tribal Law and Order Act put mechanisms in place where tribes could qualify to sentence people up to nine years,” said Overby.
Overby emphasized the FBI investigates cases jointly with reservations and says sometimes tribes may choose not to prosecute or delay prosecution knowing the sentence federal prosecutors could get is more than what the tribal court can get.
That means investigations can sometimes take awhile.
Overby said,: “Sometimes, the tribe will say ‘Hey, we know this case is being prosecuted in federal court and we’re going to delay our prosecution pending what happens in federal court,” Overby said. "You may be working 20 cases and a new homicide comes in and you have to kind of drop everything that you're working on and respond quickly to that emergency case."
As the investigation into Elias' death continues, Sutherland said the family is asking people on the reservation who want revenge not to take action.
"For me, I don't want to see another person sitting in jail because of their vengeance. I want them to be home with their families. I want them to be surrounded with the love that, maybe, this girl never had,” Sutherland said.
Sutherland is not giving up hope that she will get answers to her questions about her son's case and, eventually, justice.