Enel Green, Osage Nation and McGirt—how Indian tribes gain power in the courts


Some legal observers contend a Tulsa federal judge’s ruling in December to force Enel Green Power to tear down the 84 wind turbines it built more than a decade ago on Osage Nation land is a sign of the ability of Indian tribes to wage their fights in court.

This week, another tribal energy fight will take place in Wisconsin where a Great Lakes region tribe will make arguments that could theoretically shut down an oil pipeline that crosses Chippewa reservation land near Lake Superior.

E&E News described both cases as a test of the Biden administration’s clean energy policies. Actually, it might not be so much about clean energy policies, but the movement of tribes to simply take their cases to court in a challenge to the government.

The Osage Nation, which takes up all of Osage County, started its legal challenge in the the courts years ago. While the courts were still deciding the battle with Enel Green, there was another court ruling—the U.S. Supreme Court’s 2020 5-4 decision in McGirt v. Oklahoma  which held that lands the federal government granted to the Muscogee Nation before statehood had never been disestablished as reservations.

McGirt had nothing to do with energy, such as in the Osage fight with Enel Green. Nonetheless, it gave tribes more independence in any dispute with a corporation or in the case of Oklahoma, the state government.

The Enel Green-Osage Nation ruling will likely go to the 10th U.S. Circuit Court of Appeals in Denver. As OK Energy Today reported last week, a spokesman for the energy company indicated there will be an appeal of the December decision. A lot is riding on the appeal since Enel Green stands to lose $300 million if it indeed, is forced to remove the 84 wind turbines.

McGirt also provided more support for tribes such as the Osage Nation or the Chippewa tribe in Wisconsin. The Supreme Court ruling stated that Oklahoma had no authority over lands controlled by the state’s Five Tribes.Riyaz Kanji, an attorney representing the band before the 7th U.S. Circuit Court of Appeals.

“The courts are being put to the test in terms of whether they are willing to enforce the tribes’ sovereignty and property rights,” said Riyaz Kanji, a founder of the firm Kanji & Katzen that is representing the Chippewa tribe.

It might mean more tribes will take their legal challenges of some energy projects, whether they involve renewable energy projects or not, to court. Another of the latest examples of tribal challenges is the SunZia transmission line in New Mexico and Arizona, a massive line meant to carry solar and wind power 500 miles across the Southwest.

The Tohono O’odham Nation was joined by the San Carlos Apache Tribe in a fight against the $10 billion project.

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