110th CONGRESS
1st Session
S. 462
To approve the settlement of the water rights claims of the Shoshone-Paiute
Tribes of the Duck Valley Indian Reservation in Nevada, to require the Secretary
of the Interior to carry out the settlement, and for other purposes.
IN THE SENATE OF THE UNITED STATES
January 31, 2007
Mr. REID (for himself and Mr. ENSIGN) introduced the following bill; which
was read twice and referred to the Committee on Indian Affairs
A BILL
To approve the settlement of the water rights claims of the Shoshone-Paiute
Tribes of the Duck Valley Indian Reservation in Nevada, to require the Secretary
of the Interior to carry out the settlement, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Shoshone-Paiute Tribes of Duck Valley Water
Rights Settlement Act'.
SEC. 2. FINDINGS.
(1) it is the policy of the United States, in accordance with the trust
responsibility of the United States to Indian tribes, to promote Indian
self-determination and economic self-sufficiency and to settle Indian
water rights claims without lengthy and costly litigation, if practicable;
(2) quantifying rights to water and development of facilities needed to
use tribal water supplies is essential to the development of viable Indian
reservation economies and the establishment of a permanent reservation
homeland;
(3) uncertainty concerning the extent of the right to water of the Shoshone-Paiute
Tribes has limited the access of the Tribes to water and financial resources
necessary to achieve self-determination and self-sufficiency;
(4) in 2006, the Tribes, the State of Idaho, the affected individual water
users, and the United States resolved all tribal claims to water rights
in the Snake River Basin Adjudication through a consent decree entered
by the District Court of the Fifth Judicial District of the State of Idaho,
requiring no further Federal action to implement the Tribes' water rights
in the State of Idaho;
(5) as of the date of enactment of this Act, proceedings to determine
the extent and nature of the water rights of the Tribes are pending before
the Nevada State Engineer;
(6) final resolution through litigation of the water claims of the Tribes
will--
(B) entail great expense;
(C) continue to limit the access of the Tribes to water, with economic
and social consequences;
(D) prolong uncertainty relating to the availability of water supplies;
and
(E) seriously impair long-term economic planning and development for
all parties to the litigation;
(7) after many years of negotiation, the United States, the Tribes, the
State, and the upstream water users have entered into a settlement agreement
to resolve permanently all water rights of the Tribes in the State; and
(8) the Tribes have certain water-related claims for damages against the
United States.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to resolve outstanding issues with respect to the East Fork of the
Owyhee River in the State in such a manner as to provide important benefits
to--
(D) the upstream water users;
(2) to achieve a fair, equitable, and final settlement of all claims of
the Tribes, members of the Tribes, and the United States on behalf of
the Tribes to the East Fork of the Owyhee River in the State;
(3) to ratify and provide for the enforcement of the Agreement among the
parties to the litigation;
(4) to resolve the Tribes' water-related claims for damages against the
United States;
(5) to require the Secretary to perform all obligations of the Secretary
under the Agreement and this Act; and
(6) to authorize the actions and appropriations necessary for the United
States to meet the obligations of the United States under the Agreement
and this Act.
SEC. 4. DEFINITIONS.
(1) AGREEMENT- The term `Agreement' means the agreement entitled the `Agreement
to Establish the Relative Water Rights of the Shoshone-Paiute Tribes of
the Duck Valley Indian Reservation and the Upstream Water Users, East
Fork Owyhee River' (including all attachments to that agreement).
(2) DEVELOPMENT FUND- The term `Development Fund' means the Shoshone-Paiute
Tribes Water Rights Development Fund established by section 7(b)(1).
(3) EAST FORK OF THE OWYHEE RIVER- The term `East Fork of the Owyhee River'
means the portion of the east fork of the Owyhee River that is located
in the State.
(4) MAINTENANCE FUND- The term `Maintenance Fund' means the Shoshone-Paiute
Tribes Operation and Maintenance Fund established by section 7(c)(1).
(5) SECRETARY- The term `Secretary' means the Secretary of the Interior.
(6) STATE- The term `State' means the State of Nevada.
(7) TRIBAL WATER RIGHT- The term `tribal water right' means a right of
the Tribes described in the Agreement relating to water, including groundwater,
storage water, and surface water.
(8) TRIBES- The term `Tribes' means the Shoshone-Paiute Tribes of the
Duck Valley Indian Reservation.
(9) UPSTREAM WATER USER- The term `upstream water user' means an individual
water user that--
(A) is located upstream from the Duck Valley Indian Reservation on the
East Fork of the Owyhee River; and
(B) is a signatory to the Agreement.
SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT.
(a) In General- Except as provided in section 1f of article III of the Agreement,
and except to the extent that the Agreement otherwise conflicts with this
Act, the Agreement is approved, ratified, and confirmed.
(b) Performance of Obligations- The Secretary and any other head of a Federal
agency obligated under the Agreement shall perform any action necessary
to carry out an obligation under the Agreement in accordance with this Act.
SEC. 6. TRIBAL WATER RIGHTS.
(a) In General- The Secretary shall hold the tribal water rights in trust
on behalf of the United States for the benefit of the Tribes.
(1) ENACTMENT OF WATER CODE- Not later than 3 years after the date of
enactment of this Act, the Tribes shall enact a water code to administer
tribal water rights.
(2) INTERIM ADMINISTRATION- The Secretary shall regulate the tribal water
rights during the period beginning on the date of enactment of this Act
and ending on the date on which the Tribes enact a water code under paragraph
(1).
(c) Loss of Tribal Water Rights- The tribal water rights shall not be subject
to loss by abandonment, forfeiture, or nonuse.
SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS.
(a) Definition of Funds- In this section, the term `Funds' means--
(1) the Development Fund; and
(2) the Maintenance Fund.
(1) ESTABLISHMENT- There is established in the Treasury of the United
States a fund to be known as the `Shoshone-Paiute Tribes Water Rights
Development Fund'.
(2) USE OF FUNDS- The Tribes shall use amounts in the Development Fund--
(A) to pay or reimburse costs incurred by the Tribes in acquiring land
and water rights;
(B) for purposes of cultural preservation;
(C) to restore or improve fish or wildlife habitat;
(D) for fish or wildlife production, water resource development, agricultural
development, rehabilitation, and expansion of the Duck Valley Irrigation
Project;
(E) for water resource planning and development; or
(F) to pay the costs of designing and constructing water supply and
sewer systems for tribal communities, including--
(i) a water quality testing laboratory;
(ii) other appropriate water-related projects and other related economic
development projects;
(iii) the development of a water code; and
(iv) other costs of implementing the Agreement.
(3) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
to the Secretary for deposit in the Development Fund $9,000,000 for each
of fiscal years 2008 through 2012.
(1) ESTABLISHMENT- There is established in the Treasury of the United
States a fund to be known as the `Shoshone-Paiute Tribes Operation and
Maintenance Fund'.
(2) USE OF FUNDS- The Tribes shall use amounts in the Maintenance Fund
to pay or provide reimbursement for the costs of--
(A) operation and maintenance of the Duck Valley Irrigation Project
and other water-related projects funded under this Act; or
(B) water supply and sewer systems for tribal communities, including
the operation and maintenance costs of a water quality testing laboratory.
(3) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
to the Secretary for deposit in the Maintenance Fund $3,000,000 for each
of fiscal years 2008 through 2012.
(d) Administration of Funds-
(1) IN GENERAL- The Secretary, in accordance with the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this
Act, and the Agreement, shall manage the Funds, including by investing
amounts from the Funds in accordance with--
(A) the Act of April 1, 1880 (25 U.S.C. 161); and
(B) the first section of the Act of June 24, 1938 (25 U.S.C. 162a).
(i) IN GENERAL- During any fiscal year, the Tribes may withdraw amounts
from the Funds if the Secretary approves a plan of the Tribes to withdraw
amounts under section 202 of the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4022).
(ii) PLAN TO WITHDRAW AMOUNTS-
(I) INCLUSION- In addition to any information required under section
202 of the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4022), a plan of the Tribes to withdraw amounts under
this subparagraph shall include a requirement that the Tribes spend
the amounts withdrawn from the Funds during a fiscal year for 1
or more uses described in subsection (b)(2) or (c)(2).
(II) ENFORCEMENT- The Secretary may take administrative or judicial
action to enforce a plan of the Tribes to withdraw amounts.
(i) IN GENERAL- On approval of an expenditure plan submitted by the
Tribes under clause (ii), the Secretary shall distribute to the Tribes
amounts in the Funds not withdrawn by the Tribes during the preceding
fiscal year.
(I) IN GENERAL- For each fiscal year, the Tribes shall submit to
the Secretary for approval an expenditure plan for amounts described
in clause (i).
(II) INCLUSIONS- An expenditure plan under subclause (I) shall include--
(aa) an accounting by the Tribes of any funds withdrawn by the
Tribes from the Funds during the preceding fiscal year, including a description
of any use by the Tribes of the funds and the amount remaining in the Funds
for the preceding fiscal year; and
(bb) a description of the means by which the Tribes will use any
amount distributed under this subparagraph.
(iii) APPROVAL- The Secretary shall approve an expenditure plan under
this subparagraph if the Secretary determines that the plan is--
(II) consistent with this Act and the Agreement.
(i) TIMING- No amount from the Funds (including any interest income
accruing to the Funds) shall be distributed until the waivers under
section 8(a) take effect.
(ii) NO PER CAPITA DISTRIBUTIONS- No amount from the Funds (including
any interest income accruing to the Funds) shall be distributed to
a member of the Tribes on a per capita basis.
(3) FUNDING AGREEMENT- Notwithstanding any other provision of this Act,
on receipt of a request from the Tribes, the Secretary shall include an
amount appropriated under this subsection in the funding agreement of
the Tribes under title IV of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance with subsections
(b)(2) and (c)(2).
(4) LIABILITY- The Secretary and the Secretary of the Treasury shall not
retain any liability for the expenditure or investment of amounts distributed
to the Tribes under this subsection.
(5) CAPITAL COSTS NONREIMBURSABLE- The capital costs associated with the
Duck Valley Indian Irrigation Project as of the date of enactment of this
Act, including any capital cost incurred with funds distributed under
this subsection for that project, shall be permanently nonreimbursable.
SEC. 8. TRIBAL WAIVER OF CLAIMS.
(1) IN GENERAL- Except as otherwise provided in the Agreement and this
Act, the Tribes, and the United States on behalf of the Tribes, waive
and release--
(A) all claims to water in the East Fork of the Owyhee River and all
claims to injury relating to that water; and
(B) all claims against the State, any agency or political subdivision
of the State, or any person, entity, or corporation relating to injury
to a right of the Tribe under any Executive order entered on behalf
of the Tribes, to the extent that the injury--
(i) resulted from a flow modification or a reduction in the quantity
of water available; and
(ii) accrued on or before the effective date of the Agreement.
(2) ENFORCEMENT OF WAIVERS- A waiver of a claim under this subsection
by the Tribes, or the United States on behalf of the Tribes, shall be
enforceable in the appropriate forum.
(3) EFFECTIVE DATE- A waiver by the Tribes, or the United States on behalf
of the Tribes, of a claim under this subsection shall take effect on the
date on which the Secretary publishes in the Federal Register a statement
of findings that includes a finding that--
(A) all parties to the Agreement have executed the Agreement;
(B) a decree acceptable to each party to the Agreement has been entered
by the Fourth Judicial District Court, Elko County, Nevada; and
(C) the Agreement has been ratified under section 5(a).
(b) Waiver and Release of Claims Against the United States-
(1) IN GENERAL- In consideration of performance by the United States of
all actions required by the Agreement and this Act, including the authorization
of appropriations under subsections (b)(3) and (c)(3) of section 7, the
Tribe shall execute a waiver and release of any claim against the United
States for--
(A) a water right in the East Fork of the Owyhee River;
(B) an injury to a right described in subparagraph (A);
(i) for failure to protect, acquire, or develop a water right that
accrued on or before the effective date of a waiver under this subsection;
or
(ii) arising out of the negotiation or adoption of the Agreement;
or
(D) a fishing right under any Executive order, to the extent that an
injury to such a right--
(i) resulted from a reduction in the quantity of water available in
the East Fork of the Owyhee River; and
(ii) accrued on or before the effective date of a waiver under this
subsection.
(A) IN GENERAL- The waiver under paragraph (1) takes effect on the date
on which the amounts authorized to be appropriated under subsections
(b)(3) and (c)(3) of section 7 are distributed to the Tribes.
(i) IN GENERAL- Each applicable period of limitation and time-based
equitable defense relating to a claim described in paragraph (1) shall
be tolled for the period beginning on the date of enactment of this
Act and ending on the date on which the amounts authorized to be appropriated
under subsections (b)(3) and (c)(3) of section 7 are distributed to
the Tribes.
(ii) EFFECT OF SUBPARAGRAPH- Nothing in this subparagraph revives
any claim or tolls any period of limitation or time-based equitable
defense that expired before the date of enactment of this Act.
(1) IN GENERAL- The Tribes shall retain all rights not waived by the Tribes,
or the United States on behalf of the Tribes, in the Agreement or this
Act.
(2) CLAIMS OUTSIDE RESERVATION- Nothing in the Agreement or this Act shall
be considered to be a waiver by the Tribes of any claim to a right on
land outside the Duck Valley Indian Reservation.
(3) FUTURE ACQUISITION OF WATER RIGHTS- Nothing in the Agreement or this
Act precludes the Tribes, or the United States as trustee for the Tribes,
from acquiring a water right in the State to the same extent as any other
entity in the State, in accordance with State law.
SEC. 9. MISCELLANEOUS.
(a) General Disclaimer- The parties to the Agreement expressly reserve all
rights not specifically granted, recognized, or relinquished by--
(1) the settlement described in the Agreement; or
(b) Limitation of Claims and Rights- Nothing in this Act--
(1) establishes a standard for quantifying--
(A) a Federal reserved water right;
(B) an aboriginal claim; or
(C) any other water right claim of an Indian tribe in a judicial or
administrative proceeding; or
(2) limits the right of a party to the Agreement to litigate any issue
not resolved by the Agreement or this Act.
(c) Admission Against Interest- Nothing in this Act shall be considered
to be an admission against interest by a party in any legal proceeding.
(d) Duck Valley Reservation- The Duck Valley Indian Reservation established
by the Executive order dated April 16, 1877, as adjusted pursuant to the
Executive order dated May 4, 1886, and Executive order numbered 1222 and
dated July 1, 1910, for use and occupation by the Western Shoshones and
the Paddy Cap Band of Paiutes shall be--
(1) considered to be the property of the Tribes; and
(2) permanently held in trust by the United States for the sole use and
benefit of the Tribes.
(1) SUBJECT MATTER JURISDICTION- Nothing in the Agreement or this Act
restricts, enlarges, or otherwise determines the subject matter jurisdiction
of any Federal, State, or tribal court.
(2) CIVIL OR REGULATORY JURISDICTION- Nothing in the Agreement or this
Act impairs or impedes the exercise of any civil or regulatory authority
of the United States, the State, or the Tribes.
(3) CONSENT TO JURISDICTION- The United States consents to jurisdiction
in a proper forum for purposes of enforcing the provisions of the Agreement.
(4) EFFECT OF SUBSECTION- Nothing in this subsection confers jurisdiction
on any State court to--
(A) enforce Federal environmental laws relating to the duties of the
United States under this Act; or
(B) conduct judicial review of a Federal agency action in accordance
with this Act
END
