The Osage Nation of Killers of the Flower Moon Fame Had a Big Win in Federal Court This Week

A Federal Judge in Oklahoma has ordered the ejectment of 84 wind turbines on 8400 acres of Osage County Oklahoma. The problem for the developers of the wind farm is that they leased the surface of those 8400 acres from the owners of the “surface estate” but they had no agreement with the Osage Nation regarding the “mineral estate” affected by the construction of the wind farm. The wind farm developers say that the minimal disruption of that “mineral estate” to construct the 84 wind turbines did not require such an agreement.

As those of you who have seen the incredibly powerful movie, Killers of the Flower Moon, know, in the late 1800s, oil was discovered on these Osage Nation lands and, after the extraction of that oil began in the early 20th century, Congress severed the “surface estate”, which was owned by individual members of the Osage Nation, from the “mineral estate”, to be owned by the Osage Nation as a whole. That Act of Congress is at the heart of the decade long dispute between the United States and the Osage Minerals Council on the one hand, and the wind farm developers on the other. That dispute has already found its way to the Tenth Circuit Court of Appeals once and, barring a settlement, it may be back there.

In the most recent chapter of the Osage Nation wind farm litigation, one of the things the parties were arguing about was whether the wind developers' trespass on the Osage Nation's “mineral estate” could be sufficiently addressed by money damages or whether ejectment of the wind turbines was necessary. Obviously the latter was much more concerning to the wind farm developers than the former.

 Judge Jennifer Choe-Groves of the United States District Court for the Northern District of Oklahoma held that the unauthorized use of backfill extracted from the “mineral estate” as support for the wind turbine towers constitutes a continuing trespass and the only sufficient remedy for that continuing trespass is ejectment.

That conclusion relies on a blend of Oklahoma state law and the “Indian canon of interpretation that requires the Court to liberally construe ambiguity in laws intended to benefit Indians in favor of Indians.”

The most likely result of the Judge's decision that the wind turbines must be removed is a settlement allowing them to remain that benefits the Osage Nation to a much greater degree than had the Judge not reached this decision. However it is also possible that there will be more litigation over the elements of the Osage Nation's claims the Judge determined were susceptible of redress through money damages, and perhaps even another trip to the Court of Appeals, before any ejectment occurs.   What's certain is that the Osage Nation is being better protected now than it was in the past and that, and the Best Actress Oscar that Lily Gladstone is certain to receive for her portrayal of Mollie Burkhart, is a good thing.