KOSU reported that critics within the Osage Nation are clashing with modern day technology in a fight to protect the tribe’s origin and Native American culture. They say their estate is illegally impeded by wind turbines and their operators, as their presence damages the prairie and harms the mineral estate. The Osage Nation is adamant about maintaining a sacred place for the sky to meet the earth and traditions that go back to the tribe’s creation.
The Osage Nation is battling Enel, which operates a wind farm while developing a $1 billion solar farm near Tulsa. The legal battle has been ongoing for nearly a decade.
The Osage Nation’s Minerals Council and the federal government are seeking removal of the wind farm development from the prairie. Enel says that would cost about $300 million.
Both parties will meet in federal court in Tulsa in the case of United States vs. Osage Wind Farms LLC to consider several issues within the case. That includes:
- Whether or not Osage Wind has trespassed by crushing rock on the minerals estate. The plaintiffs say this was “an actual physical invasion of real estate that met the threshold for trespass under Oklahoma law.”
- Discuss what liability Enel Kansas has in this case.
The parties are scheduled to address the issues at a hearing in federal court this week.
In 2011, when a development of wind farms on the Osage Nation was being considered, then-Principal Chief John Red Eagle said he supported alternative energy but believed that the reservation was not the best place for the wind turbines. Red Eagle stated wind farms could affect the development of oil and gas along with Osage burial sites.
In the summer of 2011, the Osage County Board voted to allow Missouri-based Wind Capitola Group to build 94 turbines between Pawhuska and Fairfax.
The Osage Allotment Act of 1906 states that the Osage Nation owns the subsurface rights to minerals in the area. The nation’s minerals council argues their underground resources could be damaged by wind farms.
In August 2011, the Osage Agency’s Bureau of Indian Affairs Superintendent Melissa Curey told Osage News that the office didn’t approve the wind farm ordinance passed by Osage County and that any wind turbine built, “may have to be removed or rebuilt” if it interferes with the minerals estate. In the fall of that year, the Osage Nation filed suit against the company.
In 2014, newly elected Principal Chief Geoffrey Standing Bear declared a national emergency and said wind farms were illegally trespassing on Osage property. An act was then passed by Osage Congress:
“….Any activity by any person or entity which affects restricted or trust property of an Osage Indian or of the Osage Nation occurring within the territory of the Osage Nation will be subject to the civil jurisdiction of the Osage Nation Courts.”
The act also called for federal court protections for the Osage Nation and the Osage Shareholders Association.
Another lawsuit was filed in late 2014 by the federal government against Enel’s subsidiaries, which owns Osage Wind.
When the lawsuit was initially filed, U.S. District Court Judge James H. Payne ruled that Enel wasn’t illegally mining limestone and other minerals that belonged to the Osage Nation when erecting the turbines.
Two years later, Payne was overruled by the U.S. Court of Appeals, which said that the activity was mining because Enel gathered rock, crushed it, then used it for a commercial purpose: building the base for the turbines with rock. Enel appealed that decision to the U.S. Supreme Court but the high court declined to hear the case.
In legal filings, Enel says ejectment from Osage County will cause irreparable financial damages.
Since 2016, Enel and the Osage Minerals Council — along with the federal government — have been in and out of court over damages related to the wind turbines and whether the company trespassed willfully.