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‘Winter Counts’ dives into blurred justice on reservations

Denver-based author David Heska Wanbli Weiden’s debut novel “Winter Counts” is a crime fiction that’s part mystery, suspense and thriller.

It takes a sobering look at the convoluted justice that often comes when crimes are committed on reservations by Native Americans. How the federal government gets involved, or doesn’t, can have jarring consequences.

“The tribal police couldn’t do anything. The feds prosecuted all felony crimes on the rez, and they didn’t mess with any crime short of murder,” Virgil Wounded Horse, the book’s local enforcer on the Rosebud Indian Reservation in South Dakota, says at the novel’s outset.

It sets the stage for one of the book’s main thrusts: Weiden’s examination of the Major Crimes Act – a law passed by the U.S. Congress in 1885 – as part of a final section of the Indian Appropriations Act that year.

The law places certain crimes under federal jurisdiction if committed by a Native American in Native territory. But its effect has often been an uneven one for Native American communities.

The rollicking novel is something of a case study of justice denied by the American legal system, or in some cases by a tribal council.

In Winter Counts, Wounded Horse is hired to fill in the gaps when that happens.

“Winter Counts” is David Heska Wanbli Weiden’s debut novel. (Courtesy Ecco Press)

But the book also examines other subjects affecting Native Americans, including addiction, substandard care by the Indian Health Service and the need for a return to Indigenous food and cuisine for health and sustainability.

But the issue of crime and justice stands out.

Chief Spotted Tail

Weiden recently published a children’s book that has a connection to Winter Counts – “Spotted Tail.”

“I wrote it because I wanted Lakota kids from my particular band to have a book of one of their own,” Weiden said.

The book features the former leader of the Lakotas by the same name. The Major Crimes Act came about in the wake of his murder.

In 1881, a Lakota on the Rosebud Indian Reservation killed Chief Spotted Tail. The Americans arrested the offender, but the Lakota people got involved and wanted him to face restitution for his crime.

“But the Americans didn’t like that because of European justice. They were outraged because they loved Spotted Tail and thought it was outrageous that the Natives wouldn’t punish him more severely,” Weiden said.

The killer was sentenced to death, but the U.S. Supreme Court ruled in favor of a lawsuit brought by the Lakotas arguing that they were a sovereign nation.

In response to the court’s decision, the U.S. Congress passed the law taking away the authority to prosecute felony crimes on a reservation. Felony cases would be referred by the Federal Bureau of Investigation to the U.S. Attorney’s office.

However, Weiden said, the feds ended up refusing to prosecute 30% to 40% of felony crimes that didn’t rise to the level of murder. The lack of prosecution meant offenders that, for example, hurt women and children were often set free. It’s a situation that happens today.

“The Major Crimes Act is a disaster,” Weiden said. “It contributes to crimes committed on the reservation – and to missing and murdered Indigenous women across the country.”

Weiden hopes Winter Counts will bring more attention to the little known and understood law that’s harming Native American lives.

“When an offender is set free, sometimes the families will go hire their own vigilante. Beat them up for a price. [The book] is based upon real life. It’s a really terrible situation on reservations,” he said. “I study the statistics; they are continuing to let a high percentage of offenders go free.”

Winter Counts is very personal for Weiden, too.

Author David Heska Wanbli Weiden (Photo Aslan Chalom)

“My aunt and cousin were murdered on the Rosebud Reservation when I was a very small child,” he said. “Because of this terrible incident, I’ve always had an interest in criminal justice, especially on Native lands.”

Weiden would like to see the law terminated and Native nations given precedence over their own affairs.

He said the Tribal Law and Order Act that was passed during the Obama administration was a good step forward, although it hasn’t completely solved the problem.

The 2010 law expands the punitive abilities of tribal courts operating in Indian Country and allows them to increase jail sentences handed down in criminal cases.

‘Under prosecution, over incarceration’

The Major Crimes Act has also had an effect on how long someone is incarcerated. As it stands today, because Natives that commit a felony crime have to be prosecuted in the federal correctional system instead of the state system – sentences are more punitive.

“Maybe a person gets an aggravated assault charge from a bar fight – somebody makes a bad choice and goes after someone with a beer bottle,” Weiden said. “In most state courts, you’d get six months at most. But the federal system is more rigid. Under the guidelines you could get five years and there is no parole. We have an issue of under prosecution and over incarceration.”

Weiden hopes the book with spark a dialogue among tribal leaders and decision makers in Washington, D.C.

“I’m hoping that my little voice will spur a discussion. Hopefully this can be a nonpartisan issue,” he said.

Meanwhile, Weiden is already working on a sequel to Winter Counts. It will likely be released in 2022. There is also movement on a film adaptation of the novel.

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Damon Scott
Damon is a multimedia journalist for the Seminole Tribune. He has previously been an editor and reporter for digital and print media in Florida and his home state of New Mexico. Send him an email at