[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3658 Introduced in House (IH)]
105th CONGRESS
2d Session
H. R. 3658
To provide for the settlement of the water rights claims of the
Chippewa Cree Tribe of the Rocky Boy's Reservation, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 1, 1998
Mr. Hill introduced the following bill; which was referred to the
Committee on Resources
_______________________________________________________________________
A BILL
To provide for the settlement of the water rights claims of the
Chippewa Cree Tribe of the Rocky Boy's Reservation, 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 ``Chippewa Cree Tribe of the Rocky
Boy's Reservation Indian Reserved Water Rights Settlement Act of
1998''.
SEC. 2. FINDINGS.
Congress hereby finds that--
(1) in fulfillment of its trust responsibility to Indian
tribes and to promote tribal sovereignty and economic self
sufficiency, it is the policy of the United States to settle
the water rights claims of the tribes without lengthy and
costly litigation;
(2) the Rocky Boy's Reservation was established as a
homeland for the Chippewa Cree Tribe;
(3) adequate water for the Chippewa Cree Tribe of the Rocky
Boy's Reservation is important to a permanent, sustainable and
sovereign homeland for the Tribe and its members;
(4) the Chippewa Cree Tribe's sovereignty and Reservation
economy depend on the development of the Reservation's water
resources;
(5) the planning, design, and construction of the
facilities needed to utilize water supplies effectively are
necessary to the development of a viable Reservation economy
and to implementation of the Chippewa Cree-Montana Water Rights
Compact;
(6) the Rocky Boy's Reservation is located in a water short
area of the State of Montana and the Compact contemplates the
development of additional water supplies, including importation
of domestic water, to meet the needs of the Chippewa Cree
Tribe;
(7) proceedings to determine the full extent of the
Chippewa Cree Tribe's water rights are currently pending before
the Montana Water Court as a part of In the Matter of the Adjudication
of All Rights to the Use of Water, Both Surface and Underground, within
the State of Montana;
(8) recognizing that final resolution of the general stream
adjudication will take many years and entail great expense to
all parties, prolong uncertainty as to the availability of
water supplies, and seriously impair the long-term economic
planning and development of all parties, the Chippewa Cree
Tribe and the State of Montana entered into a Water Rights
Compact on April 14, 1997; and
(9) the allocation of water resources from the Tiber
Reservoir to the Tribe under this Act is uniquely suited to the
geographic, social, and economic characteristics of the area
and situation involved.
SEC. 3. PURPOSES OF ACT.
The purposes of this Act are--
(1) to achieve a fair, equitable, and final settlement of
all claims to water rights in the State of Montana for--
(A) the Chippewa Cree Tribe; and
(B) the United States of America for the benefit of
the Chippewa Cree Tribe;
(2) to approve, ratify, and confirm, as modified herein,
the Water Rights Compact entered into by the Chippewa Cree
Tribe of the Rocky Boy's Reservation and the State of Montana
on April 14, 1997, and to provide funding and other
authorization necessary to its implementation;
(3) to authorize the Secretary of the Interior to execute
and implement the Water Rights Compact and to take such other
actions as are necessary to implement the Compact consistent
with this Act;
(4) to authorize Federal feasibility studies designed to
identify and analyze potential mechanisms to enhance, through
conservation or otherwise, water supplies in North Central
Montana, including, but not limited to, mechanisms to import
domestic water supplies for the future growth of the Rocky
Boy's Indian Reservation;
(5) to authorize certain projects on the Rocky Boy's Indian
Reservation, Montana, in order to implement the Compact;
(6) to authorize certain modifications to the purposes and
operation of the Bureau of Reclamation's Tiber Dam and Lake
Elwell on the Marias River in Montana in order to implement the
Compact; and
(7) to authorize appropriation of funds necessary for the
implementation of the Compact.
SEC. 4. DEFINITIONS.
As used in this Act:
(1) ``Compact'' means the water rights compact between the
Chippewa Cree Tribe of the Rocky Boy's Reservation and the
State of Montana published at 85-20-601 MCA (1997).
(2) ``Final'' with reference to approval of the decree in
section 5(b) means completion of any direct appeal to the
Montana Supreme Court of a final decree by the Water Court
pursuant to 85-2-235, MCA (1997), or to the Federal Court of
Appeals, including the expiration of the time in which a
petition for certiorari may be filed in the United States
Supreme Court, denial of such a petition, or the issuance of
the Supreme Court's mandate, whichever occurs last.
(3) ``Missouri River System'' means the mainstem of the
Missouri River and its tributaries, including but not limited
to the Marias River.
(4) ``Secretary'' means the Secretary of the United States
Department of the Interior, or his or her duly authorized
representative.
(5) ``Towe Ponds'' means the reservoir or reservoirs
referred to as ``Stoneman Reservoir'' in the Compact.
(6) ``Tribal Compact Administration'' means the activities
assumed by the Tribe for implementation of the Compact as set
forth in article IV of the Compact.
(7) ``Tribal Water Right'' means the right of the Chippewa
Cree Tribe of the Rocky Boy's Reservation to divert, use, or
store water as described by article III of the Compact.
(8) ``Tribe'' means the Chippewa Cree Tribe of the Rocky
Boy's Reservation and all officers, agents, and departments
thereof.
(9) ``Water development'' includes all activities that
involve the use of water or modification of water courses or
water bodies in any way.
SEC. 5. RATIFICATION OF COMPACT AND ENTRY OF DECREE.
(a) Water Rights Compact Approved.--Except as modified by this Act,
and to the extent the Compact does not conflict with this Act, the
Water Rights Compact entered into by the Chippewa Cree Tribe of the
Rocky Boy's Reservation and the State of Montana on April 14, 1997, is
hereby approved, ratified and confirmed and the Secretary shall execute
and implement the Compact together with any amendments agreed to by the
parties or necessary to bring the Compact into conformity with this
Act, and to take such other actions as are necessary to implement the
Compact.
(b) Approval of ``Proposed Decree''.--No later than 180 days after
the date of the enactment of this Act, the United States, the Tribe, or
the State of Montana shall petition the Montana Water Court,
individually or jointly, to enter and approve the ``Proposed Decree''
agreed to by the United States; the Tribe, and the State of Montana
attached as appendix 1 to the Compact, or any amended version thereof
agreed to by the United States, the Tribe and the State of Montana.
Resort may be had to the Federal District Court in the circumstances
set forth in article VII.B.4 of the Compact. In the event the approval
by the appropriate court, including any direct appeal, does not become
final within three (3) years following the filing of the decree, or the
decree is approved but is subsequently set aside by the appropriate
court, the Compact shall be void. The Secretary may act for the United
States to extend this three (3) year deadline twice in one (1) year
increments on agreement with the State and the Tribe.
SEC. 6. USE AND TRANSFER OF THE TRIBAL WATER RIGHT.
(a) Administration and Enforcement.--As provided in the Compact,
until the adoption and approval of a tribal water code, the Secretary
shall administer and enforce the Tribal Water Right.
(b) Tribal Member Entitlement.--Any entitlement to Federal Indian
reserved water of any tribal member shall be satisfied solely from the
water secured to the Tribe by the Compact and shall be governed by the
terms and conditions thereof. Such entitlement shall be administered by
the Tribe pursuant to a tribal water code developed and adopted
pursuant to article IV.A.2. of the Compact, or by the Secretary pending
the adoption and approval of the tribal water code.
(c) Temporary Transfer of Tribal Water Right.--Notwithstanding any
other provision of statutory or common law, the Tribe may, with the
approval of the Secretary and subject to the limitations and conditions
set forth in the Compact, including limitation on transfer of any
portion of the Tribal Water Right to within the Missouri River Basin,
enter into a service contract, lease, exchange, or other agreement
providing for the temporary delivery, use, or transfer of the water
rights confirmed to the Tribe in the Compact: Provided, however, That
no service contract, lease, exchange, or other agreement entered into
under this subsection may permanently alienate any portion of the
Tribal Water Right.
SEC. 7. FEASIBILITY STUDIES AUTHORIZATION.
(a) Municipal, Rural and Industrial Feasibility Study.--The
Secretary of the Interior, through the Bureau of Reclamation shall
perform a municipal, rural, and industrial (MR&I) feasibility study of
water and related resources in North Central Montana to evaluate
alternatives for an MR&I supply for the Rocky Boy's Reservation. The
study shall include but not be limited to the feasibility of releasing
the Tribe's Tiber allocation as provided in section 8 of this Act into
the Missouri River System for later diversion to a treatment and
delivery system for the Rocky Boy's Reservation. The MR&I Study shall
include utilization of existing Federal and non-Federal studies and
shall be planned and conducted in consultation with other Federal
agencies, the State of Montana, and the Chippewa-Cree Tribe.
(b) Acceptance or Participation in Identified Off-Reservation
System.--The United States, the Chippewa Cree Tribe of the Rocky Boy's
Reservation, and the State of Montana shall not be obligated to accept
or participate in any potential off-reservation water supply system
identified in the MR&I Feasibility Study authorized in subsection 7(a)
of this Act.
(c) Regional Feasibility Study.--The Secretary, through the Bureau
of Reclamation, shall conduct, pursuant to Reclamation Law, a Regional
Feasibility Study to evaluate water and related resources in North
Central Montana in order to determine the limitations of such resources
and how they can best be managed and developed to serve the needs of
the citizens of Montana. The Regional Study shall evaluate existing and
potential water supplies, uses, and management; identify major water
related issues, including environmental, water supply and economic
issues; evaluate opportunities to resolve such issues; and evaluate
options for implementation of resolutions to issues. Because of the
regional and international impact of the Regional Study, it may not be
segmented. The Regional Study shall utilize, to the maximum extent
possible, existing information and shall be planned and conducted in
consultation with all affected interests, including interests in
Canada.
SEC. 8. TIBER RESERVOIR ALLOCATION.
(a) Allocation of Water to the Tribe.--
(1) The Secretary shall permanently allocate to the Tribe,
without cost to the Tribe, 10,000 acre-feet per year of stored
water from the water right of the Bureau of Reclamation in Lake
Elwell, Lower Marias Unit, Upper Missouri Division, Pick-Sloan
Missouri Basin Program, Montana, measured at the outlet works
of the dam or at the diversion point from the reservoir. The
allocation shall be effective when the requirements of section
5(b) of this Act are met.
(2) The Secretary shall enter into an agreement with the
Tribe setting forth the terms of the allocation and providing
for the Tribe's use or temporary transfer of water stored in
Lake Elwell, subject to the terms and conditions of the Compact
and this Act.
(3) The allocation provided in this section shall be
subject to the prior reserved water rights, if any, of any
Indian tribe, or persons claiming water through any Indian
Tribe.
(b) Use and Temporary Transfer of Allocation.--
(1) Subject to the limitations and conditions set forth in
the Compact and this Act, the Tribe shall have the right to
devote the water allocated by this section to any use,
including, but not limited to, agricultural, municipal,
commercial, industrial, mining, or recreational uses, within or
outside the Rocky Boy's Reservation.
(2) Notwithstanding any other provision of statutory or
common law, the Tribe may, with the approval of the Secretary
and subject to the limitations and conditions set forth in the
Compact, enter into a service contact, lease, exchange, or
other agreement providing for the temporary delivery, use, or
transfer of the water allocated by this section: Provided,
however, That no service contract, lease, exchange, or other
agreement may permanently alienate any portion of the tribal
allocation.
(c) Remaining Storage.--The United States shall retain the right to
use for any authorized purpose, any and all storage remaining in Lake
Elwell after the allocation made to the Tribe in subsection (a)(1) of
this section.
(d) Water Transport Obligation; Development and Delivery Costs.--
The United States shall have no responsibility or obligation to provide
any facilities for the transport of the water allocated by this section
to the Rocky Boy's Reservation or to any other location. Except for the
contribution set forth in section 11(b)(3) of this Act, the cost of
developing and delivering the water allocated by this section or any
other supplemental water to the Rocky Boy's Reservation shall not be
borne by the United States.
(e) Act Not Precedential.--The provisions of this Act regarding the
allocation of water resources from the Tiber Reservoir to the Tribe
shall not be precedent for any other Indian water right claims.
SEC. 9. ON-RESERVATION WATER RESOURCES DEVELOPMENT.
(a) Water Development Projects.--The Secretary of the Interior,
through the Bureau of Reclamation, is authorized and directed to plan,
design, and construct, or to provide, pursuant to subsection (b) of
this section, for the planning, design, and construction of the
following water development projects on the Rocky Boy's Reservation:
(1) Bonneau Dam and Reservoir Enlargement.
(2) East Fork of Beaver Creek Dam Repair and Enlargement.
(3) Brown's Dam Enlargement.
(4) Towe Ponds' Enlargement.
(5) Such other water development projects as the Tribe
shall from time to time deem appropriate.
(b) Implementation Agreement.--The Secretary, at the request of the
Tribe, shall enter into an agreement with the Tribe to implement the
provisions of this Act through the Tribe's Self-Governance Compact and
Annual Funding Agreement by which the Tribe shall plan, design, and
construct any or all of the projects authorized by this section.
(c) Bureau of Reclamation Project Administration.--The Secretary,
through the Bureau of Reclamation, has entered into an agreement with
the Tribe, pursuant to Public Law 93-638, as amended by the Self
Governance Act, defining and limiting the role of the Bureau of
Reclamation in its administration of the projects authorized in
subsection (a) of this section; establishing the standards upon which
the projects will be constructed; and for other purposes necessary to
implement this section. This agreement shall be effective on the Tribe
exercising its right under subsection (b) of this section.
SEC. 10. CHIPPEWA CREE INDIAN RESERVED WATER RIGHTS SETTLEMENT FUND.
(a) Establishment of Trust Fund.--There is hereby established in
the Treasury of the United States a trust fund for the Chippewa Cree
Tribe of the Rocky Boy's Reservation to be known as the ``Chippewa Cree
Indian Reserved Water Rights Settlement Trust Fund''. Pursuant to the
provisions of the Trust Fund Management Act of 1994, 25 U.S.C. 4001 et
seq., the Tribe, with the approval of the Secretary, may transfer the
Fund to a mutually agreed upon private financial institution. The Fund
shall consist of the following accounts:
(1) Tribal Compact Administration Account.
(2) Economic Development Account.
(3) Future Water Supply Facilities Account.
(b) Fund Composition.--The Fund shall consist of such amounts as
are appropriated to its accounts in accordance with the authorizations
for appropriations in subsections (b) (1), (2), and (3) of section 11
of this Act together with all interest which accrues on the Fund:
Provided, That if the Tribe exercises its right pursuant to subsection
(a) of this section to transfer the funds to a private financial
institution, except as provided in the transfer agreement, the
Secretary shall retain no oversight over the investment of the funds.
In addition, the transfer agreement shall provide for the appropriate
terms and conditions, if any, on expenditures from the Fund in addition
to the plans set forth in subsections (c)(2) and (c)(3) of this
section.
(c) Use of Fund.--The Tribe may use the Fund to fulfill the
purposes of this Act, subject to the following restrictions on
expenditures:
(1) Except for $400,000 necessary for capital expenditures
in connection with tribal compact administration, only interest
accrued on the Tribal Compact Administration Account shall be
available to satisfy the Tribe's obligations for tribal compact
administration under the provisions of the Compact.
(2) Both principal and accrued interest on the Economic
Development Account shall be available to the Tribe for
expenditure pursuant to an Economic Development Plan approved
by the Secretary.
(3) Both principal and accrued interest on the Future Water
Supply Facilities Account shall be available to the Tribe for
expenditure pursuant to a Water Supply Plan approved by the
Secretary.
(d) Agreement Regarding Fund Expenditures.--If the Tribe does not
exercise its right under subsection (a) of this section to transfer the
funds to a private financial institution, the Secretary shall enter
into an agreement with the Tribe providing for appropriate terms and
conditions, if any, on expenditures from the Fund in addition to the
plans set forth in subsections (c)(2) and (c)(3) of this section.
(e) Per Capita Distributions Prohibited.--No part of the Fund shall
be distributed on a per capita basis to members of the Tribe.
(f) Congressional Intent.--Nothing in this Act is intended--
(1) to alter the trust responsibility of the United States
to the Tribe; or
(2) to prohibit the Tribe from seeking additional
authorization or appropriation of funds for tribal programs or
purposes.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
(a) Feasibility Studies.--There is authorized to be appropriated to
the Department of Interior, Bureau of Reclamation, not to exceed
$4,000,000 for the purpose of conducting the Feasibility Studies
authorized in section 7 (a) and (c) of this Act as follows:
(1) $1,000,000 in fiscal year 1999 to be divided equally
between the two studies.
(2) $3,000,000 in fiscal year 2000; $500,000 for the study
authorized in section 7(a) and the balance for the study
authorized in section 7(c).
(b) Chippewa Cree Fund.--There is authorized to be appropriated to
the Department of the Interior, Bureau of Indian Affairs, for the
Chippewa Cree Fund, established in section 10 of this Act, $21,000,000
as follows:
(1) Tribal compact administration account.--For tribal
compact administration assumed by the Tribe under the Compact
and this Act $3,000,000 in fiscal year 1999.
(2) Economic development account.--For Tribal economic
development, $3,000,000, in fiscal year 2000.
(3) Future water supply facilities account.--For the total
Federal contribution to the planning, design, construction,
operation, maintenance and rehabilitation of a future
Reservation water supply systems, $15,000,000 as follows:
(A) $2,000,000 in fiscal year 1999.
(B) $5,000,000 in fiscal year 2000.
(C) $8,000,000 in fiscal year 2001.
(c) On-Reservation Water Development.--There is authorized to be
appropriated to the Department of the Interior, Bureau of Reclamation,
$24,000,000 for the construction of the on-Reservation water
development projects authorized by section 9 of this Act as follows:
(1) $13,000,000 in fiscal year 2000 for the planning,
design and construction of the Bonneau Dam Enlargement. The
Federal contribution is provided for the development of
additional capacity in Bonneau Reservoir for storage of water
secured to the Tribe under the Compact.
(2) $8,000,000 in fiscal year 2001 for: the planning,
design and construction of the East Fork Dam and Reservoir
enlargement ($4,000,000), of the Brown's Dam and Reservoir
enlargement ($2,000,000), and of the Towe Ponds enlargement
($2,000,000).
(3) $3,000,000 in fiscal year 2002 for the planning,
design, and construction of such other water resource
developments as the Tribe, with the approval of the Secretary,
from time to time may deem appropriate or for the completion of
the four projects enumerated in subsection 11(c) (1) and (2) of
this Act.
(4) Any unexpended balance in the funds appropriated under
paragraphs (c)(1) and (c)(2) of this section, after substantial
completion of all of the projects enumerated in sections 9(a)
(1), (2), (3), and (4) shall be available to the Tribe first
for completion of the enumerated projects and then for other
water resource development projects under section 9(a)(5).
(d) Administration Costs.--There is authorized to be appropriated
to the Department of the Interior, Bureau of Reclamation, in fiscal
year 2000, $1,000,000 for its costs of administration: Provided, That
if such costs exceed $1,000,000, the Bureau of Reclamation may use
funds authorized for appropriation under subsection (c) of this section
for such costs: Provided further, That the Bureau of Reclamation shall
exercise its best efforts to minimize such costs to avoid exceeding
$1,000,000.
(e) Availability of Funds.--The monies authorized in section 11 (a)
and (b)(1) shall be available for use immediately upon appropriation.
Those monies deposited in the Chippewa Cree Fund accounts shall draw
interest consistent with section 10(a), but the monies appropriated
under section 11(b) (2) and (3) and 11(c) are not available for
expenditure until completion of the requirements of section 5(b) of
this Act and execution of the waiver and release required of section
13(c).
(f) Without Fiscal Year Limitation.--All money appropriated
pursuant to authorizations under this Act shall be available without
fiscal year limitation.
SEC. 12. STATE CONTRIBUTIONS TO SETTLEMENT.
Consistent with article VI.C.2. and C.3. of the Compact, the State
contribution to settlement shall be as follows:
(1) $150,000 for the following purposes: water quality
discharge monitoring wells and monitoring program; diversion
structure on Big Sandy Creek; conveyance structure on Box Elder
Creek; and purchase of contract water from Lower Beaver Creek
Reservoir.
(2) Subject to the availability of funds, the State shall
provide services valued at $400,000 for administration required
by the Compact and for water quality sampling required by the
Compact.
SEC. 13. MISCELLANEOUS PROVISIONS.
(a) Non-Exercise of Tribe's Rights.--The Tribe shall not exercise
the rights set forth in article VII(A)(3) of the Compact.
(b) Waiver of Sovereign Immunity.--The United States shall not be
deemed to have waived its sovereign immunity except to the extent
provided in subsections (a), (b), and (c) of section 208 of the Act of
July 10, 1952 (43 U.S.C. 666).
(c) Tribal Release of Claims Against the United States.--
(1) Upon passage of this Act, the Tribe shall execute a
waiver and release of the following claims against the United
States, the validity of which are not recognized by the United
States: Provided, that the waiver and release of claims shall
not be effective until completion of the appropriation of the
funds set forth in section 11 of this Act and completion of the
requirements of section 5(b) of this Act.
(2) Any and all claims to water rights (including water
rights in surface water, groundwater, and effluent), claims for
injuries to water rights, claims for loss or deprivation of use
of water rights, and claims for failure to acquire or develop
water rights for lands of the Tribe from time immemorial to the
date of ratification of the Compact by Congress.
(3) Any and all claims arising out of the negotiation of
the Compact and the settlement authorized by this Act.
(4) In the event the waiver and release does not become
effective as set forth in subsection (c)(1), the United States
shall be entitled to set-off against any claim for damages
asserted by the Tribe against the United States any funds
transferred to the Tribe pursuant to section 11 and any
interest accrued thereon up to the date of set-off, and the
United States shall retain any other claims or defenses not
waived in this Act or in the Compact as modified by this Act.
(d) Other Tribes Not Adversely Affected.--Nothing in this Act is
intended to quantify or otherwise adversely affect the land and water
rights, or claims or entitlements to land or water of an Indian Tribe
other than the Chippewa Cree Tribe.
(e) Environmental Compliance.--In implementing the Compact, the
Secretary shall comply with all aspects of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), and the Endangered Species
Act (16 U.S.C. 1531 et seq.), and all other applicable environmental
acts and regulations.
(f) Execution of Compact.--Execution of the Compact by the
Secretary as provided for in this Act shall not constitute a major
Federal Action under the National Environmental Policy Act (42 U.S.C.
4321 et seq.). The Secretary is directed to carry out all necessary
environmental compliance required by Federal law in implementing this
agreement.
(g) Act Not Precedential.--Nothing in this Act shall be construed
or interpreted as a precedent for the litigation of reserved water
rights or the interpretation or administration of future water
settlement acts.
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