Short title

This Act may be cited as the

Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act

Findings

Congress finds that— (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— (A)take many years; (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 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.

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— (A)the United States; (B)the State; (C)the Tribes; and (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.

Definitions

In this Act: (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.

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.

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. (b)

Administration

(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.

Development and Maintenance Funds

(a)

Definition of Funds

In this section, the term Funds means— (1)the Development Fund; and (2)the Maintenance Fund. (b)

Development 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. (c)

Maintenance Fund

(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). (2)

Distributions

(A)

Withdrawals

(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. (B)

Remaining 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. (ii)

Expenditure plan

(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— (I)reasonable; and (II)consistent with this Act and the Agreement. (C)

Limitations

(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.

Tribal waiver of claims

(a)

Waivers

(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); (C)breach of trust— (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. (2)

Effective date

(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. (B)

Tolling of claims

(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. (c)

Retention of rights

(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.

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 (2)this Act. (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. (e)

Jurisdiction

(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.