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It Didn’t Stop with the Osage: Examining the Impact of Global Trade on Indigenous Communities in the Wake of Killers of the Flower Moon

By Iza Camarillo | Research Director of Global Trade Watch at Public Citizen

Posted on Medium.

Killers of the Flower Moon is one of the most awaited films of 2023. Directed by Martin Scorsese and starring Leonardo DiCaprio and Robert DeNiro, the movie garnered a nine-minute standing ovation during its premier at the Cannes Film Festival and suffice it to say, people are intrigued.

The movie is based on a book with the same name written by David Grann. The plot centers on a series of murders of members of the Osage tribe in Oklahoma in the 1920s after oil was discovered on their land. In the book, Grann depicts the investigation by the burgeoning FBI and a young J. Edgar Hoover that eventually led to the arrest of a greedy and corrupt cattleman, William Hale. When oil was found in the Osage territory, federal mandates required that “head rights” be paid to the Indigenous tribe for the oil drilled in their land. Through a family connection, Hale benefitted from the head rights and garnered overnight wealth. Unsatisfied with sharing the oil rights with the Osage tribe, he killed over two dozen members of the Indigenous tribe to expand his share of head rights. Hale was eventually arrested by the FBI and imprisoned.

It certainly makes for a devastating yet intriguing story and everyone watching the trailer wonders the same thing: Is it real? Sadly, yes. The atrocities described in the book did take place in Oklahoma a century ago. Sadder still is the fact that violent attacks against Indigenous communities for profit have continued around the world to this day.

While over the years, Indigenous rights have been recognized around the world through legal instruments in hopes of preventing similar attacks, thanks to investment arbitration clauses embedded in free trade agreements, corporations are emboldened to target resource-rich territories without consequences, even receiving compensation from taxpayers.

Investment arbitration or the Investor State Dispute Settlement (ISDS) mechanism is included in most free trade agreements as the default method for corporations to sue governments for interfering with their foreign direct investments. ISDS trials are held in secret and are generally heard by a panel of three arbitrators, usually corporate lawyers. Unsurprisingly, ISDS proceedings are skewed in favor of investors since over half of the time governments are forced to give corporations millions — and sometimes billions — of dollars in taxpayer money, effectively fleecing public funds. Even when states “win”, they typically have to bear the burden of expensive legal and arbitration costs.

Foreign investors flock to Indigenous territories since most reside in natural resource-rich regions, particularly in Latin America. Corporations seeking to extract natural resources displace and damage the communities, often causing irreparable harm to the environment through pollution, deforestation, and even cutting off drinking water sources. Indigenous communities often fight back through protests to defend their land. Governments face the dilemma of siding with the corporations and responding to protests with armed policemen, often inciting more violence — or enacting safeguards for the indigenous communities, such as laws prohibiting the mining of resources in indigenous territories. Regardless, corporations can launch an ISDS case accusing the government of interfering with their investment or not responding with sufficient force and demand a hefty payment.

Recent Attacks on Indigenous Communities by Greedy Corporations

Below are some examples of recent attacks on Indigenous communities by greedy corporations, but there are likely many more that we may never know about due to the secretive nature of ISDS.

In Colombia, the paramos are high-altitude ecosystems located on the Andes Mountain Range that provide 85% of the country’s drinking water and are considered sacred to the Muisca-Chibcha, an Indigenous group that has lived near the paramos for centuries. The Muisca-Chibcha do not inhabit the paramos, as they consider the ground to be sacred, but the land is integral to rituals and ceremonies. Indigenous groups and locals have long campaigned for the paramos to be designated national conservation sites, and in recent years, after witnessing the damaging effects to the land from pollution and the projected shrinkage of 50% of the ecosystems in a few years that would lead to the extinction of native species on a massive scale, the Colombian government finally banned mining in the paramos. Unhappy with the announcement, two Canadian mining companies immediately launched ISDS cases against Colombia for lost potential future profits. Eco Oro Minerals Corp is demanding $250 million plus interests, and Red Eagle Exploration Limited is seeking $118 million.

In Ecuador, Chevron Corporation — one of the largest U.S. oil corporations — launched a case against Ecuador seeking to evade payment of a multi-billion-dollar court ruling against the company for widespread pollution of the Amazon rainforest. Ecuadorian courts found that Chevron was responsible for the dumping of billions of gallons of toxic water and digging hundreds of open-air oil sludge pits in Ecuador’s Amazon, poisoning the communities of some 30,000 Amazon residents, including the entire populations of six Indigenous groups (one of which is now extinct). Instead of abiding by the rulings, Chevron asked an investor-state tribunal to challenge the decision produced by Ecuador’s domestic legal system. Although a final payment sum has not been released, Ecuador will likely have to pay the company, as the tribunal found the government to be partially at fault.

Spanish company Abengoa launched a claim against Mexico for preventing them from operating a waste management facility that the local community strongly opposed. The facility was to be built on a geological fault line across from a dam and the Sierra Gorda biosphere reserve — a UNESCO World Heritage site and home to Nanhu and Otomi Indigenous communities. The community contended that building a waste facility on a fault line — by a dam, in an area contaminated with arsenic, near indigenous communities and an environmental reserve — posed a significant environmental threat. Despite the multiple justifiable reasons for rejecting the facility, the tribunal ordered Mexico to pay Abengoa more than $40 million USD, plus interest.

Finally, in Peru, Bear Creek Mining Corporation, a Canadian mining company, filed an ISDS claim against Peru when their approval for a silver mining project was rejected. Bear Creek was originally granted approval to operate the project located in Santa Ana, near Lake Titicaca, the largest freshwater lake in South America. However, since approving the project, Peruvian legislators were faced with strong opposition to the mining project in the form of regional protests and large-scale social unrest due to concerns of the environmental impacts of mining and threat of contamination in the surrounding waterways, especially to the Indigenous communities in the area that rely on Lake Titicaca for fishing and farming. As a result of the Peruvian government’s attempts to protect the Indigenous communities, the tribunal forced Peru to pay an estimated $30.4 million USD to Bear Creek.

Killers of the Flower Moon portrays on the silver screen the plight of Indigenous communities in the face of unscrupulous greed. The atrocities perpetrated to the communities like the Osage tribe are not limited to Oklahoma and have unfortunately continued past the 1920s. It is clear that through ISDS, corporations are emboldened to perpetuate the atrocities committed in Oklahoma around the world. ISDS must be removed from trade agreements, and corporate social responsibilities must be strengthened to protect Indigenous communities.