Osage Nation seeks damages from Enel over wind turbines on tribal land

The tribe featured in the Oscar-nominated film Killers of the Flower Moon is seeking damages from Italian energy giant Enel following its victory in a legal battle that underscores the cost of ignoring tribal sovereignty in the transition to green energy. 

Enel must pay nearly $260mn to remove 84 wind turbines from the Osage Nation’s land in Oklahoma after failing to obtain a minerals permit, a federal district court judge ordered in December. It is among the first rulings in the US to demand the excavation of an operating wind project. A later trial will determine how much the company will pay in compensation. 

“Enel, this is going to cost you a fortune for not coming and getting a permit. That’s all you had to do,” said Osage Minerals Council chair Everett Waller, a descendant of the tribal members whose murders in the 1900s are featured in the Martin Scorsese film.

“Whatever issue falls on Indian country, now you have a case for which you can fall back on,” Waller told the Financial Times. He added that the Osage Nation is not against clean energy development, but insists that companies engage in proper consultation.

The victory for the Osage comes as the US clean energy buildout gains speed, encroaching on tribal lands and raising questions about whether the green transition risks inflicting the same harms as the fossil fuel industry.

Human rights campaigners have documented multiple examples of fossil fuel companies violating the land rights of indigenous people in the US and elsewhere over more than a century. Killers of the Flower Moon tells the story of how the Osage people became rich when oil was discovered on their land, and were exploited and in many cases murdered by white men as a result.     

Legal cases led by indigenous groups are mounting against projects ranging from wind farms to transmission cables to lithium mines, driven by fears that green development will result in a loss of Indian country.

“[The Osage case] brings into sharp relief that disregarding the rights of local communities and indigenous populations in the race to a decarbonised economy . . . is short sighted, and there’s real consequences for the bottom line as there is for the surrounding population,” said Michael Clements, director of international programmes at the Business and Human Rights Resource Centre.

An annual global benchmark report from the non-profit examined 28 public wind and solar companies and found nearly all did not mention indigenous rights nor make commitments pertaining to the UN Declaration on the Rights of Indigenous Peoples, a non-binding framework established in 2007. 

Obtaining informed consent from indigenous peoples with regard to use of their lands and resources is enshrined as a right in the declaration.

An Enel spokesperson said the company “disagrees” with the recent court decision and will appeal. The company will continue in “good faith” to operate the wind project until a final outcome is determined and never intended to impose on the Osage nation’s sovereignty, the spokesperson said. 

President Joe Biden’s landmark climate law, the Inflation Reduction Act, included lucrative incentives to speed up the deployment of clean energy while offering incentives for domestic sourcing — an initiative that relies on indigenous participation. The vast majority of metals crucial for the energy transition, including copper and lithium, are found within 35 miles of Native American reservations, according to a recent MSCI report. The National Renewable Energy Laboratory also found that tribal lands are home to nearly 7 per cent of the country’s renewable energy potential.

The IRA also offers new opportunities for indigenous communities to participate in the clean energy economy, including access to tax credits for projects for the first time and more than $750mn in tribal specific programmes. 

“Indian country is going to be important for the green economy . . . it is a best practice for a non-native company who wants to do business in Indian country to engage effectively with the tribe,” said Keith Harper, a member of the Cherokee nation and the first Native American US ambassador. 

The question of how to achieve targets on climate, energy security and economic development while preserving tribal institutions has divided indigenous communities and pitted tribes against developers.

In Arizona, for example, Rio Tinto and BHP’s Resolution Copper mine has been awaiting federal approval for more than a decade, delayed by litigation from members of the San Carlos Apache tribe. Tribal members argue the project will destroy Oak Flat, a sacred site listed on the National Register of Historic Places, and is in violation of their religious rights.

In January 2021, the Apache Stronghold filed a lawsuit asking for a preliminary injunction to stop the project. Last March, the group asked a full-judge panel of the Ninth US Circuit Court of Appeals to prevent the land transfer to Resolution Copper for the second time after a three-judge panel ruled against it in October 2021.

Some tribe members have supported the project and the economic opportunities it brings, with “many dozens of members” of the San Carlos Apache tribe working for Resolution Copper, a source familiar with the company said.

Karen Kitcheyan-Jones, a member of the San Carlos Apache Tribe, wrote an op-ed in support of the Resolution Copper project in The Arizona Republic in September, arguing the mine will bring “food, clothes, shelter and employment for the Apache people”. 

If developed, Resolution Copper will be the largest copper mine in North America, meeting a quarter of US demand for copper, hailed as the “metal of electrification” for its ubiquity in clean energy technologies. S&P Global expects global copper demand to double by 2035 to nearly 49mn metric tonnes. 

Vicky Peacey, president and general manager of Resolution Copper, said that the company has “significantly reshaped” the project following a decade of consultation and collaboration with tribes, forgoing portions of the ore body and relocating major facilities to “avoid dozens of areas of cultural significance and hundreds of ancestral sites, medicinal plants, seeps and springs.”

Luke Goodrich, vice-president and senior counsel at the Becket Fund for Religious Liberty, who represents Apache Stronghold on the case, said they will “absolutely” appeal to the Supreme Court if their circuit court appeal is struck down.

“There’s a lot of complexity, but the moral question is not complicated at all . . . Oak Flat will be physically destroyed. The burial grounds will be destroyed,” said Goodrich.