[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1899 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1899

    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 SENATE OF THE UNITED STATES

                             April 1, 1998

 Mr. Baucus (for himself and Mr. Burns) introduced the following bill; 
  which was read twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 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 contract, 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 authorize 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-Government 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. 
Sec. Sec. 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 system, $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 subsections 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.
                                 <all>