[Congressional Record Volume 170, Number 190 (Friday, December 20, 2024)]
[Senate]
[Pages S7283-S7284]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                   Unanimous Consent Request--S. 2796

  Mr. MULLIN. Madam President, for 8 years, beginning with my time in 
the House, I have worked on the Miami-Illinois Land Claim Settlement 
Act, which is now S. 2796.
  I want to thank Chief Lankford of the Miami Tribe for his assistance 
to move this bill forward and to help lay out a solid, factual 
background before the Indian Affairs Committee, which is why it 
uniquely came out of the committee.
  This is a unique piece of legislation. The Miami Tribe is not seeking 
a settlement for their treaty claim or an appropriation from Congress. 
This is zero cost to Congress. The Miami Tribe--or ``My-am-uh'' Tribe--
is not seeking a settlement. The Tribe is simply asking Congress to do 
what only Congress can: to extinguish the Tribe's treaty title claim to 
the land in Illinois.
  First, this bill will remove a cloud on the title for non-Indian 
landowners in eastern and central Illinois, benefiting the Tribe and 
non-Tribal members alike. Second, the bill will allow the Tribe the 
opportunity to plead their case before the U.S. Court of Federal 
Claims.
  This is a straightforward bill, cosponsored by both of my colleagues 
from Illinois, Senator Durbin and Senator Duckworth. The Miami Tribe 
has waited long enough to get this done, and it is time to act.
  Madam President, as if in legislative session and notwithstanding 
rule XXII, I ask unanimous consent that the Senate proceed to the 
immediate consideration of Calendar No. 489, S. 2796; that the bill be 
considered read a third time and passed; and that the motion to 
reconsider be considered made and laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  The senior Senator from Utah.
  Mr. LEE. Madam President, reserving the right to object, I have great 
respect and admiration for my friend and distinguished colleague, the 
Senator from Oklahoma.
  When I listen to the arguments being presented, I am reminded of a 
couple of things.
  No. 1, these claims arise out of and relate to a treaty--a treaty 
going back to 1805. Those claims had the opportunity, more recently, to 
have been litigated in front of the previously existing Indian Claims 
Commission. Congress, in recognizing the need at the time to open up 
what might have been a confusing set of legal circumstances or an 
inadequate availability for relief, opened up a 5-year window for 
claims related to this treaty that was entered into with the Miami 
Tribe in 1805. They opened that up for a period between 1946 and 1951.
  Jurisdiction over what was previously the Indian Claims Commission 
has since been transferred over to the U.S. Court of Federal Claims. 
Interestingly, the Court of Federal Claims still maintains 
jurisdiction over such things, but it lacks the ability to enter 
orders, and the statute of limitations has long since passed. There was 
this 5-year window under which they were able to bring up claims like 
this.

  Now, during that time period between 1946 and 1951, the Miami Tribe 
did pursue and litigate on a number of claims related to that treaty, 
enough for them to have received a remedy--a remedy of about $11 
million at the time. I am told that, in 2024 dollars, that is about 
$200 million.
  There are reasons why we have statutes of limitations. Those reasons 
have to do with the fact that, at some point, a stone rolling down the 
mountain has to come to rest. When you are dealing with litigation, 
especially litigation on claims dating back a couple hundred years, it 
is especially important to have finality.
  Now, my friend and colleague refers to the need to reopen this window 
today to remove what he describes as a cloud to the chain of title. The 
problem with that argument is that it overlooks the fact that the 
United States is an indispensable party for any and all such claims as 
might arise so as to underlie the punitive cloud to any chain of title 
on these lands. As an indispensable party, the United States must be 
added, or the court can't handle anything like that. The court, under 
existing law, can't address them in the absence of the indispensable 
party, and because the United States is and has been deemed an 
indispensable party pursuant to rule 19 of the Federal Rules of Civil 
Procedure, no such claim exists. Therefore, any and all claims that 
could create the asserted cloud to the chain of title are, in fact, 
illusory--entirely illusory--as the U.S. Department of Justice 
articulated well when delivering testimony in July of 2019 on behalf of 
the U.S. Department of Justice--Environment and Natural Resources 
Division of DOJ--before the Subcommittee for Indigenous Peoples of the 
U.S. House of Representatives Committee on Natural Resources.
  These claims are especially important here. In other words, the 
existence of a statute of limitations is especially important here.
  Here is what they say:

       Statutes of limitations serve valuable purposes. They are 
     designed--

  In supporting Supreme Court precedent here--

     to promote justice by preventing surprises through the 
     revival of claims that have been allowed to slumber until the 
     evidence has been lost, memories have faded, and witnesses 
     have disappeared. Those concerns are particularly acute here, 
     where the United States will be required to litigate claims 
     based on events that occurred more than 150 years ago. Such 
     litigation can be complex and expensive, and it typically 
     requires hiring expert historians and other professionals. 
     There is no valid basis to expend Federal resources to 
     undertake this effort here.

  I concur with that assessment and would add that this would add a 
layer of complexity, create a massive slippery-slope problem, and open 
up settled expectations and understandings regarding Federal land 
ownership that had been settled long ago and as to which statutes of 
limitations have now run.
  On that basis, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. MULLIN. Madam President, I appreciate my colleague from Utah in 
his fine arguments. Obviously, you can tell he is a great attorney.
  What frustrates me is that I am literally down the hall. My colleague 
could have, at any time, picked up the phone and called me. The Senator 
could have simply talked to me. He could have even called me back today 
when I called him on the phone, and we could have discussed this. At 
any given time, we could have had this discussion not here on the 
floor, but we could have actually taken the time and walked through 
this.
  I do understand his concerns, but his argument is that, since the 
statute of limitations has been looked at, we should not deal with any 
Indian issues--which I live in and always have lived in Indian Country, 
which I know my colleague from Utah has not and may not always 
understand the complexity which we live with consistently. But, under 
the Senator's argument, the court should never look at anything inside 
the treaty because it has been done; it is over with. So why should we 
even look at it? Yet the court always looks into it, and that is why we 
have the court. We also have the separation of powers. We are the

[[Page S7284]]

legislative branch, and the Senator is quoting the judicial branch.
  In this case, the only people who can solve this issue is Congress. 
The court can't. This is unique. Only Congress can do this--no one 
else. And there is a dispute because my colleague is from Utah. He is 
not from Illinois, and he doesn't understand the title issues that 
there is a dispute on, which is why Congress has looked at this over 
and over and over again. That is why we have had hearings in the House 
and in the Senate in the committees that have jurisdiction over this. 
And both committees have spoken and said, yes, this is something that 
needs to move forward and that Congress does need to act on.
  I would have loved to have had this debate not in public but in 
private, and we could have discussed this. But the Senator didn't give 
me that opportunity; so now, we are here.
  So, if Congress isn't going to solve this issue, that means we just 
throw our hands up and leave the Tribes in limbo? I think we have 
walked away from the Tribes enough, and I take it personal because, 
when the Tribes do need assistance, where else are they supposed to go? 
They can't go back and litigate this in the courts until Congress acts, 
which is why this legislation is in front of us. And then the 
Congress--once we act, it can be referred to the court, and then the 
court can decide if the statute of limitations has already run out on 
it or not or if they have the right to go back and look at it.
  Just recently, there was what is called the McGirt decision that went 
back in and completely changed what was going on in Indian Country 
inside Oklahoma and uprooted something that was settled a long time 
ago, we thought, especially considering that the ruling came out and 
said that they believed the reservation lines still exist inside 
Oklahoma, under the McGirt decision.
  Now, the statute of limitations had run out on that before because, 
actually, Congress had acted and ended it in 1906 by giving title to 
the landowners, who in this case would be Indian Country, which would 
be my relatives, and we still own the land that was given to us at that 
time before we achieved statehood in 1906, because Congress said, 
before we can actually become a State, we have got to settle this issue 
with the Tribes. So we did it. Yet the court still picked up that 
decision and went back and looked at it and made changes.
  So, under my colleague's argument, that can't happen because it is 
done. And I will say this again: I would have loved to have had this 
conversation in private, but the Senator didn't give me that 
opportunity. So here we are.
  I would ask the Presiding Officer: If we don't work this out and 
Congress is the only entity that can handle this, then where is the 
Tribe supposed to go?
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Utah.
  Mr. LEE. Madam President, if my colleague left me a message, I am 
unaware of that. I did look and see that he tried to call me today. I 
have had a million calls today and been in and out of a lot of 
meetings. If he left me a message, I haven't seen it on my phone, and I 
apologize for that. I had a lot going on today.
  I will say this. My staff has met with my colleague's staff on a 
number of occasions to discuss this. The concerns here should not be a 
surprise either to my colleague or to my colleague's staff.
  With regard to the question of whether we should just let the court 
decide, I understand what he said, but that is literally not what this 
is about. It is not about whether the court can decide whether to 
reopen the statute of limitations. That is not for the court. That is 
for Congress. That is for us to decide.
  The punitive reason for reopening the statute of limitations, which 
has been closed since 1951 for claims going back to an 1805 treaty, the 
purported reason for reopening it is the alleged cloud of title on the 
chain of title. What I am saying is that is an entirely illusory cloud 
on the chain of title because there is an indispensable party under 
rule XIX of the Federal Rules of Civil Procedure. You cannot litigate 
that. Unless the United States is a party and unless the United States 
has abrogated its sovereign immunity sufficiently to allow the United 
States to be added as an indispensable party, it cannot be litigated; 
thus, making any claims entirely illusory.
  So if there is some other argument, we can pursue those on the 
merits. But there is no cloud on the chain of title because there can't 
be because the United States has not, since 1951, recognized an 
abrogation of U.S. sovereign immunity to a degree sufficient to allow 
the existence of any type of a cloud on the chain of title.
  Mr. MULLIN. Well, if there wasn't a cloud, then this wouldn't be an 
issue. So, obviously, there was, and there is.
  You can say what you want to, but there is. That is why we are here 
today. That is why we are trying to solve the issue.
  This is why the gentleman from Utah isn't from Indian Country; he is 
not from Illinois; and he doesn't understand the issue, which is why we 
should have had a conversation one-on-one, not just your staff--because 
I promise you, if there was an issue that I had with the gentleman from 
Utah, I would have simply just said: Hey, Mike, let's talk.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Utah.
  Mr. LEE. Madam President, it is December 20. We are on, likely, the 
last legislative break before we break for the Christmas holidays. The 
first time I personally became aware of this issue was this afternoon. 
So it is not as if one could argue that there has been dilatory conduct 
on my part and not listening to it. I didn't even know this was an 
issue. I didn't know what it was until just a few hours ago.
  Mr. MULLIN. That is your staff's problem.
  Mr. LEE. This is a problem to bring something like this up that could 
have, potentially, an economic impact on the U.S. Government of tens, 
if not hundreds, of billions of dollars. To rush something through like 
this at, literally, the final hour before the end of a legislative 
year, before the end of a Congress, is not something that we do. And 
for my colleague to suggest that I have been dilatory, when he is 
bringing this up to rush this through by unanimous consent at the last 
possible minute, under an argument that is legally specious and 
vacuous. The alleged cloud on the chain of title does not, cannot 
exist. So the argument doesn't work.
  If he wants to bring this up in the next Congress, let's do it. Let's 
talk about it. Let's have it go through regular order but not at the 
last hour, at the last day, at the end of the Congress.
  Mr. MULLIN. That is just not right.
  The PRESIDING OFFICER. The junior Senator from Oklahoma.
  Mr. MULLIN. Eight years. This was filed at the beginning of this 
Congress. Just because your staff didn't make you aware isn't my fault. 
That is not my fault. To say 8 years, which I opened with--maybe if you 
would have listened to what I said. We have been working on this for 8 
years. This bill has been around for a long time. To accuse me of 
saying that I am waiting until the last minute, until the last day, at 
the last hour to do it is just absolutely wrong.
  I yield the floor.
  The PRESIDING OFFICER. The senior Senator from Utah.
  Mr. LEE. Look, we are in fact at the last effective legislative day 
of the year and of the Congress. And what my colleague from Oklahoma is 
saying is that we should call it up and pass it tonight.
  Now, whether he thinks I should have been aware of this issue long 
ago--fair enough. I wasn't. But the way this is supposed to work around 
here is, unless there is unanimity, we don't pass legislation. That is 
a significant issue. Nor should we pass legislation that could and 
would expose the United States, potentially, to tens--if not hundreds--
of billions of dollars in liability for a lot of transient reasons that 
haven't been fully vetted on the floor of the U.S. Senate.
  Mr. MULLIN. I yield the floor.
  The PRESIDING OFFICER. The junior Senator from Alaska.
  Mr. SULLIVAN. Madam President, I ask unanimous consent to be able to 
speak for 7 minutes prior to this vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.