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…
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.
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.
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.
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.
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.
