1.This Act may be cited as
the Crow Tribe Water Rights Settlement
Act of 2008
.
2.The purposes of this Act are—
(1)to achieve a
fair, equitable, and final settlement of claims to water rights in the State of
Montana for—
(A)the Crow Tribe;
and
(B)the United States
for the benefit of the Tribe and allottees;
(2)to authorize,
ratify, and confirm the Crow Tribe-Montana Water Rights Compact entered into by
the Tribe and the State on June 22, 1999;
(3)to authorize and
direct the Secretary of the Interior—
(A)to execute the
Crow Tribe-Montana Water Rights Compact; and
(B)to take any other
action necessary to carry out the Compact in accordance with this Act;
and
(4)to authorize the
appropriation of funds necessary for the implementation of the Compact and this
Act.
3.In this Act:
(1)The
term allottee means any individual who holds a beneficial real
property interest in an allotment of Indian land that is—
(A)located within
the Reservation or the ceded strip; and
(B)held in trust by
the United States.
(2)The term ceded strip means the area identified
on the map attached as appendix 5 to the Compact.
(3)The term CIP OM&R means—
(A)any recurring or
ongoing activity associated with the day-to-day operation of the Crow
Irrigation Project;
(B)any activity
relating to scheduled or unscheduled maintenance of the Crow Irrigation
Project; and
(C)any activity
relating to replacement of a feature of the Crow Irrigation Project.
(4)The
term Compact means the water rights compact between the Tribe and
the State contained in section 85–20–901 of the Montana Code Annotated (2007)
(including any exhibit or part of or amendment to the Compact).
(5)
(A)The term Crow Irrigation Project means the
irrigation project—
(i)authorized by
section 31 of the Act of March 3, 1891 (26 Stat. 1040);
(ii)managed by the
Secretary (acting through the Bureau of Indian Affairs); and
(iii)consisting of
the project units of—
(I)Agency;
(II)Big Horn;
(III)Forty
Mile;
(IV)Lodge Grass
#1;
(V)Lodge Grass
#2;
(VI)Pryor;
(VII)Reno;
(VIII)Soap Creek;
and
(IX)Upper Little
Horn.
(B)The
term Crow Irrigation Project includes land held in trust by the
United States for the Tribe and the allottees in the Bozeman Trail and Two
Leggins irrigation districts.
(6)The term Crow Settlement Fund means the fund
established by section 11(a).
(7)The term Economic Development means any
activity the Tribe determines to further the economic development of the
Tribe.
(8)The term enforceability date means the date on
which the Secretary publishes in the Federal Register the statement of findings
described in section 10(e).
(9)The
term final with reference to approval of the decree described in
section 10(e)(1)(A) means—
(A)completion of any
direct appeal to the Montana Supreme Court of a decree by the Montana Water
Court pursuant to section 85–2–235 of the Montana Code Annotated (2007),
including the expiration of time for filing of any such appeal; or
(B)completion of any
appeal to the appropriate United States Court of Appeals, including the
expiration of time in which a petition for certiorari may be filed in the
United States Supreme Court, denial of such petition, or issuance of the United
States Supreme Court’s mandate, whichever occurs last.
(10)The term Indian tribe has the meaning given
the term in section 4 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450b).
(11)
(A)The term MR&I System means the
municipal, rural, and industrial water system of the Reservation, generally
described in the document entitled Crow Indian Reservation Municipal,
Rural and Industrial Water System Engineering Report
prepared by HKM
Engineering, Inc., and dated July 2008.
(B)The
term MR&I System includes—
(i)the
raw water intake, water treatment plant, pipelines, storage tanks, pumping
stations, pressure-reducing valves, electrical transmission facilities, and
other items (including real property and easements necessary to deliver potable
water to the Reservation) appurtenant to the system described in subparagraph
(A); and
(ii)in
descending order of construction priority—
(I)the Big Horn
River Valley Subsystem; and
(II)the Little Big
Horn River Valley Subsystem.
(12)The term MR&I System OM&R
means—
(A)any recurring or
ongoing activity associated with the day-to-day operation of the MR&I
System;
(B)any activity
relating to scheduled or unscheduled maintenance of the MR&I System;
and
(C)any activity
relating to replacement of project features of the MR&I System.
(13)The
term Reservation means the area identified on the map attached as
appendix 4 to the Compact.
(14)The
term Secretary means the Secretary of the Interior.
(15)The
term State means the State of Montana.
(16)Tribal compact
administrationThe term Tribal Compact
Administration means any activity relating to—
(A)the development
or enactment by the Tribe of the tribal water code;
(B)establishment by
the Tribe of a water resources department; and
(C)the operation by
the Tribe of that water resources department (or a successor agency) during the
10-year period beginning on the date of establishment of the department.
(17)The term tribal water code means a water code
adopted by the Tribe in accordance with section 7(f).
(18)The term tribal water rights means—
(A)the water rights
of the Tribe described in the Compact; and
(B)the water rights
provided to the Tribe under section 8.
(19)The
term Tribe means the Crow Tribe of Indians of the State of Montana
on behalf of itself and its members (but not its members in their capacities as
allottees).
(20)The term Yellowtail Dam OM&R means the
charges levied by the Bureau of Reclamation for operation, maintenance, and
repair costs in association with storage contracts for water stored in Bighorn
Lake.
(21)Water
development projectThe term Water Development
Project means any future potable water system developed by the Tribe to
serve the other portions of the Reservation, or such water development projects
as the Tribe determines to be appropriate to fulfill the water needs of its
members.
4.
(a)Except as modified by this Act, and to the extent the
Compact does not conflict with this Act, the Compact is authorized, ratified,
and confirmed. To the extent amendments to the Compact are executed that are
consistent with this Act, such amendments are also authorized, ratified, and
confirmed.
(b)To the extent that the Compact does not conflict with
this Act, the Secretary is directed to and shall promptly execute the Compact,
including all exhibits to or parts of the Compact requiring the signature of
the Secretary.
(c)National
environmental policy Act of 1969
(1)In implementing the Compact, the Secretary shall
promptly comply with all applicable aspects of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.), and all other applicable environmental Acts and
regulations.
(2)Execution of the Compact by the Secretary under this
section shall not constitute a major Federal action under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). The Secretary is
directed to carry out all Federal compliance necessary to implement the
Compact.
5.Rehabilitation
and improvement of the crow irrigation project
(a)The Secretary, acting through the Commissioner of
Reclamation, shall carry out such activities as are necessary to rehabilitate
and improve the water diversion and delivery features of the Crow Irrigation
Project, in accordance with an agreement to be negotiated between the Secretary
and the Tribe.
(b)The Bureau of Reclamation shall serve as the lead agency
with respect to any activity to rehabilitate or improve the water diversion or
delivery features of the Crow Irrigation Project.
(c)The
scope of the rehabilitation and improvement under this section shall be as
described in the document entitled Engineering Evaluation of Existing
Conditions, Crow Agency Rehabilitation Study
prepared by HKM
Engineering, Inc., and dated July 2008.
(d)Costs incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the Tribe shall be
nonreimbursable.
(e)The
Secretary’s obligation pursuant to this section shall not exceed $160,653,000,
except that the total amount of $160,653,000 shall be increased or decreased,
as appropriate, based on ordinary fluctuations from May 1, 2008, in
construction cost indices applicable to the types of construction involved in
the rehabilitation and improvement.
(f)At
the request of the Tribe, in accordance with applicable Federal law, the
Secretary shall enter into an agreement with the Tribe to implement the
provisions of this section by which the Tribe shall plan, design, and construct
any or all of the rehabilitation and improvement required by this
section.
(g)Nothing in this Act affects any responsibility of the
Secretary relating to the operation, maintenance, or repair of the Crow
Irrigation Project.
6.Design and
construction of MR&I system
(a)The Secretary, acting through the Commissioner of
Reclamation, shall carry out such activities as are necessary to design and
construct the water diversion and delivery features of the MR&I System, in
accordance with an agreement to be negotiated between the Secretary and the
Tribe.
(b)The Bureau of Reclamation shall serve as the lead agency
with respect to any activity to design and construct the water diversion and
delivery features of the MR&I System.
(c)The
scope of the design and construction under this section shall be as described
in the document entitled Crow Indian Reservation Municipal, Rural and
Industrial Water System Engineering Report
prepared by HKM Engineering,
Inc., and dated July 2008.
(d)Costs incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the Tribe shall be
nonreimbursable.
(e)The
Secretary’s obligation pursuant to this section shall not exceed $200,840,000,
except that the total amount of $200,840,000 shall be increased or decreased,
as appropriate, based on ordinary fluctuations from May 1, 2008, in
construction cost indices applicable to the types of construction involved in
the design and construction.
(f)At
the request of the Tribe, in accordance with applicable Federal law, the
Secretary shall enter into an agreement with the Tribe to implement the
provisions of this section by which the Tribe shall plan, design, and construct
any or all of the design and construction required by this section.
7.
(a)It is the intent of Congress to provide to each allottee
benefits that are equivalent to or exceed the benefits allottees currently
possess, taking into consideration—
(1)the potential
risks, cost, and time delay associated with litigation that would be resolved
by the Compact and this Act;
(2)the availability
of funding under this Act and from other sources;
(3)the availability
of water from the tribal water rights; and
(4)the applicability
of section 7 of the Act of February 8, 1887 (25 U.S.C. 381).
(b)Confirmation of
tribal water rights
(1)The tribal water rights are ratified, confirmed, and
declared to be valid.
(2)Use
of the tribal water rights shall be subject to the terms and conditions
established by the Compact.
(c)The tribal water rights shall be held in trust by the
United States for the use and benefit of the Tribe, and the allottees in
accordance with this section.
(d)As
specified in and provided for in this Act:
(1)Any entitlement to water of an allottee under Federal law
shall be satisfied from the tribal water rights.
(2)Allottees
shall be entitled to a just and equitable allocation of water for irrigation
purposes.
(3)The water rights and other benefits granted by this Act
shall be considered full satisfaction of any claim of an allottee waived
pursuant to section 10(a)(2).
(4)Before asserting any claim against the United States
under section 7 of the Act of February 8, 1887 (25 U.S.C. 381), or any other
applicable law, an allottee shall exhaust remedies available under the tribal
water code or other applicable tribal law.
(5)Following
exhaustion of remedies available under the tribal water code or other
applicable tribal law, an allottee may seek relief under section 7 of the Act
of February 8, 1887 (25 U.S.C. 381), or other applicable law.
(6)The
Secretary shall have the authority to protect allottees’ rights as specified in
this section.
(e)
(1)Except as provided in paragraph (2), the Tribe shall have
sole authority to allocate, distribute, and lease the tribal water
rights—
(A)in accordance
with the Compact; and
(B)subject to
approval of the Secretary of the tribal water code under subsection
(f)(3)(B).
(2)Notwithstanding paragraph (1), and subject to the
tribal water code and applicable tribal and Federal law, an allottee may,
pursuant to the tribal water code, lease any interest in land held by the
allottee, together with any water right determined to be appurtenant to the
interest in land.
(f)
(1)Notwithstanding the time period set forth in article
(IV)(A)(2)(b) of the Compact, not later than 1 year after the enforceability
date, the Tribe shall enact a tribal water code, that provides for—
(A)the management,
regulation and governance of all uses of the tribal water rights in accordance
with the Compact; and
(B)establishment by
the Tribe of conditions, permit requirements, and other limitations relating to
the storage, recovery, and use of the tribal water rights in accordance with
the Compact.
(2)Subject
to the approval of the Secretary, the tribal water code shall provide
that—
(A)tribal
allocations of water to allottees shall be satisfied with water from the tribal
water rights;
(B)charges for
delivery of water for irrigation purposes for allottees shall be assessed on a
just and equitable basis;
(C)there is a
process by which an allottee may request that the Tribe provide water for
irrigation use in accordance with this Act;
(D)there is a due
process system for the consideration and determination by the Tribe of any
request by an allottee, or any successor in interest to an allottee, for an
allocation of such water for irrigation purposes on allotted land, including a
process for—
(i)appeal and
adjudication of any denied or disputed distribution of water; and
(ii)resolution of
any contested administrative decision; and
(E)there is a
requirement that any allottee with a claim relating to the enforcement of
rights of the allottee under the tribal water code or relating to the amount of
water allocated to land of the allottee must first exhaust remedies available
to the allottee under tribal law and the tribal water code before initiating an
action against the United States or petitioning the Secretary pursuant to
subsection (d)(5).
(3)
(A)The Secretary shall administer the tribal water rights
until the tribal water code is enacted in accordance with paragraph (1) and
those provisions requiring approval pursuant to paragraph (2).
(B)The
tribal water code shall not be valid unless—
(i)the
provisions of the tribal water code required by paragraph (2) are approved by
the Secretary; and
(ii)each amendment
to the tribal water code that affects a right of an allottee is approved by the
Secretary.
(g)Except
as otherwise specifically provided in this section, nothing in this Act—
(1)authorizes any
action by an allottee against any individual or entity, or against the Tribe,
under Federal, State, tribal, or local law; or
(2)alters or affects
the status of any action pursuant to section 1491(a) of title 28, United States
Code.
8.Storage
allocation from bighorn lake
(a)Storage
allocation to tribe
(1)As described in and subject to article III(A)(1)(b) of
the Compact, the Secretary shall allocate to the Tribe 300,000 acre-feet per
year of water stored in Bighorn Lake, Yellowtail Unit, Lower Bighorn Division,
Pick Sloan Missouri Basin Program, Montana, under a water right held by the
United States and managed by the Bureau of Reclamation, as measured at the
outlet works of Yellowtail Dam, including—
(A)not more than
150,000 acre-feet per year of the allocation, which may be used in addition to
the natural flow right described in article III(A)(1)(a) of the Compact;
and
(B)150,000 acre-feet
per year of the allocation, which may be used only as supplemental water for
the natural flow right described in article III(A)(1)(a) of the Compact for use
in times of natural flow shortage.
(2)
(A)The allocation under paragraph (1) shall be considered to
be part of the tribal water rights.
(B)The priority date of the allocation under paragraph (1)
shall be the priority date of the water right held by the Bureau of
Reclamation.
(C)
(i)The Tribe shall administer the water allocated under
paragraph (1) in accordance with the Compact.
(ii)In accordance with subsection (c), the Tribe may
temporarily transfer by service contract, lease, exchange, or other agreement,
not more than 50,000 acre-feet of water allocated under paragraph (1)(A) off
the Reservation, subject to the approval of the Secretary and the requirements
of the Compact.
(b)
(1)As a condition of receiving an allocation under this
section, the Tribe shall enter into an allocation agreement with the Secretary
to establish the terms and conditions of the allocation, in accordance with the
terms and conditions of the Compact and this Act.
(2)The
allocation agreement under paragraph (1) shall include, among other things, a
provision that—
(A)it is without
limit as to term;
(B)the Tribe, and
not the United States, shall be entitled to all consideration due to the Tribe
under any lease, contract, or agreement the Tribe may enter into pursuant to
the authority in subsection (c);
(C)the United States
shall have no trust obligation or other obligation to monitor, administer, or
account for—
(i)any
funds received by the Tribe as consideration under any lease, contract, or
agreement the Tribe may enter into pursuant to the authority in subsection (c);
or
(ii)the expenditure
of such funds;
(D)if the facilities
at Yellowtail Dam are significantly reduced or are anticipated to be
significantly reduced for an extended period of time, the Tribe shall have the
same storage rights as other storage contractors with respect to the allocation
under this section;
(E)the costs
associated with the construction of the storage facilities at Yellowtail Dam
allocable to the Tribe—
(i)shall be
nonreimbursable; and
(ii)shall be
excluded from any repayment obligation of the Tribe; and
(F)no water service
capital charges shall be due or payable for any water allocated to the Tribe
pursuant to this Act and the allocation agreement, regardless of whether that
water is delivered for use by the Tribe or is delivered under any leases,
contracts, or agreements the Tribe may enter into pursuant to the authority in
subsection (c).
(c)Temporary
transfer for use off reservation
(1)Notwithstanding any other provision of statutory or
common law, subject to paragraph (2), on approval of the Secretary and subject
to the terms and conditions of the Compact, the Tribe may enter into a service
contract, lease, exchange, or other agreement providing for the temporary
delivery, use, or transfer of not more than 50,000 acre-feet per year of water
allocated under subsection (a)(1)(A) for use off the Reservation.
(2)An
agreement under paragraph (1) shall not permanently alienate any portion of the
water allocated under subsection (a)(1)(A).
(d)
(1)Upon the date of enactment of this Act, water in Bighorn
Lake shall be considered to be fully allocated and no further storage
allocations shall be made by the Secretary.
(2)Nothing in this subsection prevents the Secretary from
renewing the storage contract with Pennsylvania Power and Light Company
consistent with the allocation to Pennsylvania Power and Light Company in
existence on the date of enactment of this Act, or entering into future
agreements with the Northern Cheyenne or Crow Tribes facilitating the Northern
Cheyenne and Crow Tribes’ use of their allocations of water from Bighorn
Lake.
9.
(a)The benefits provided to the Tribe and the allottees
under the Compact and this Act shall be considered to completely satisfy all
claims of the Tribe and the allottees waived and released pursuant to section
10.
(b)No recognition
of water rightsNotwithstanding subsection (a) and except as
provided in section 7(d), nothing in this Act recognizes or establishes any
right of a member of the Tribe or an allottee to water within the Reservation
or the ceded strip.
10.Waivers and
releases of claims
(a)
(1)Claims for
water rights by the tribe on behalf of itself and its members (but not its
members in their capacities as allottees) and by the United States on behalf of
the tribe and its members (but not members in their capacities as
allottees)Subject to the retention of rights set forth in
subsection (c), as consideration for the benefits granted under the Compact and
this Act, the Tribe, on behalf of the Tribe and tribal members (but not tribal
members in their capacities as allottees) is authorized, and the United States,
on behalf of the Tribe and its members (but not members in their capacities as
allottees), is authorized and directed, to execute a waiver and release of any
claims for water rights, including claims based on aboriginal title, within the
State arising from time immemorial up to and including the enforceability date,
except to the extent that such claims are recognized in the Compact or this
Act.
(2)Claims for
water rights by the United States on behalf of allotteesSubject
to the retention of rights set forth in subsection (c), the United States on
behalf of allottees, as consideration for the benefits granted under the
Compact and this Act, is authorized and directed to execute a waiver and
release of any claims for water rights, including claims based on aboriginal
title, within the Reservation and the ceded strip arising from time immemorial
and, thereafter, forever, except to the extent that such claims are recognized
in the Compact or this Act.
(3)Waiver and
release of claims against the United StatesSubject to the
retention of rights set forth in subsection (c), the Tribe, on behalf of the
Tribe and tribal members (but not members in their capacities as allottees), as
consideration for the benefits granted under the Compact and this Act, is
authorized to execute a waiver and release of any claims against the United
States (or agencies, or employees of the United States) under Federal, State,
or other law for—
(A)all claims that
the Tribe may have against the United States, its agencies, or employees,
arising out of, resulting from, or relating in any manner to claims for water
rights in the State that the United States acting in its capacity as trustee
for the Tribe asserted, or could have asserted, in any court proceeding at any
time up to and including the date of enactment of this Act;
(B)all claims
relating to damages, losses, injuries to water, land, or other trust resources
due to loss of water or water rights, including claims of interference with,
diversion or taking of water, or claims relating to failure to protect,
acquire, replace, or develop water or water rights within the State of Montana
that accrued at any time up to and including the date of enactment of this Act
and that the Tribe asserted or could have asserted in any court against the
United States, its agencies, or employees;
(C)all claims
arising out of, resulting from or relating in any manner to the litigation of
claims relating to the Tribe’s water rights in the State that accrued at any
time up to and including the date of enactment of this Act; and
(D)all claims
arising out of, resulting from, or relating in any manner to the negotiation,
execution, or the adoption of the Compact or the Act at any time up to and
including the date of enactment of this Act.
(b)Effectiveness
of waivers and releasesThe waivers under subsection (a) shall
take effect on the enforceability date.
(c)Notwithstanding any other provision of this Act or the
Compact, the Tribe, on behalf of itself and tribal members (but not members in
their capacities as allottees), and the United States, acting as trustee for
the Tribe, tribal members, and the allottees, retain the right to
assert—
(1)claims for
enforcement of the Compact, this Act, and any judgment and decree issued by any
court of appropriate jurisdiction in connection with the approval of the
Compact or this Act;
(2)claims for
enforcement of any water rights acquired after the date of enactment of this
Act;
(3)any and all
claims relating to activities affecting the quality of water;
(4)any objections to
any claims for water rights under State law by or for any parties in the
Montana statewide adjudication of water rights under title 85 of part 2,
Montana Code Annotated (2007); and
(5)claims for all
rights, privileges, immunities, and powers not specifically waived and released
pursuant to subsection (a) or article VII(E) of the Compact.
(d)Effect of
compact and ActNothing in the Compact or this Act—
(1)affects the
authority of the United States, acting in a sovereign capacity, to carry out
any other Federal law (including regulations), including laws relating to
health, safety, or the environment, such as—
(A)the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.);
(B)the Safe Drinking
Water Act (42 U.S.C. 300f et seq.);
(C)the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.); and
(D)the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.) (commonly known as the Resource
Conservation and Recovery Act of 1976
);
(2)affects the
authority of the United States to carry out any activity as a trustee for any
Indian tribe other than the Tribe (or for any allottee of such an Indian
tribe); or
(3)confers on any
State court jurisdiction—
(A)to enforce
Federal environmental law regarding the duties of the United States; or
(B)to conduct
judicial review of any Federal agency action.
(e)
(1)The enforceability date shall be the date on which the
Secretary publishes in the Federal Register a statement of findings
that—
(A)the Montana Water
Court has issued a final judgment and decree approving the Compact, or if the
Montana Water Court is found to lack jurisdiction, the United States District
Court of jurisdiction has approved the Compact as a consent decree and such
approval is final;
(B)$44,000,000 has
been deposited in the Crow Settlement Fund;
(C)the Secretary has
fulfilled his obligations to negotiate an agreement with the Tribe in
accordance with sections 5(a) and 6(a);
(D)the State has
appropriated and paid into an interest-bearing escrow account any payments then
due to the Tribe under the Compact;
(E)the Tribe has
ratified the Compact by submitting the Act and the Compact to a vote by the
tribal membership for approval or disapproval and the tribal membership has
voted to approve the Act and the Compact by a majority of votes cast on the day
of the vote, as certified by the Secretary and the Tribe; and
(F)the Secretary has
fulfilled the requirements of section 8(a).
(f)Failure of
enforceability date To occurIf, because of the failure the
enforceability date to occur by December 31, 2014, this section does not become
effective, the Tribe, tribal members, and allottees, and the United States on
behalf of the Tribe, tribal members, and allottees, shall retain the right to
assert any and all claims for water within the State of Montana.
(g)
(1)Each applicable period of limitation and time-based
equitable defense relating to a claim described in this section 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 to carry out this Act
are appropriated.
(2)Nothing in this subsection revives any claim or tolls
any period of limitation or time-based equitable defense that expired before
the date of enactment of this Act.
11.
(a)There
is established in the Treasury of the United States the Crow Settlement Fund,
consisting of such amounts as are deposited in the fund under subsections (c)
through (h) of section 14.
(b)Accounts of
Crow Settlement FundThe Secretary shall establish in the Crow
Settlement Fund the following accounts:
(1)The Tribal
Compact Administration account, consisting of amounts authorized pursuant to
section 14(c).
(2)The Economic
Development account, consisting of authorized pursuant to section 14(d).
(3)The Water
Development Projects account, consisting of authorized pursuant to section
14(e).
(4)The MR&I
System OM&R account, consisting of authorized pursuant to section
14(f).
(5)The Yellowtail
Dam OM&R account, consisting of amounts authorized pursuant to section
14(g).
(6)The CIP OM&R
account, consisting of authorized pursuant to section 14(h).
(c)Deposits to
Crow Settlement Fund
(1)The Secretary of the Treasury shall promptly deposit in
the Crow Settlement Fund any amounts appropriated for that purpose.
(2)The Secretary of the Treasury shall deposit amounts in
the accounts of the Crow Settlement Fund established under subsection (b) in
descending order of priority, with highest priority given to the Tribal Compact
Administration account established under subsection (b)(1).
(d)
(1)The Secretary shall manage the Crow Settlement Fund, make
investments from the Crow Settlement Fund, and make monies available from the
Crow Settlement Fund for distribution to the Tribe consistent with the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.)
(referred to in this subsection as the Trust Fund Reform
Act
).
(2)Investment of
crow settlement fundThe Secretary shall invest amounts in the
Crow Settlement Fund in accordance with—
(A)the Act of April
1, 1880 (25 U.S.C. 161);
(B)the first section
of the Act of June 24, 1938 (25 U.S.C. 162a);
(C)the obligations
of Federal corporations and Federal Government-sponsored entities the charter
documents of which provide that the obligations of the entities are lawful
investments for federally managed funds, including—
(i)the
obligations of the United States Postal Service described in section 2005 of
title 39, United States Code;
(ii)bonds and other
obligations of the Tennessee Valley Authority described in section 15d of the
Tennessee Valley Authority Act of 1933 (16 U.S.C. 831n–4);
(iii)mortgages,
obligations, and other securities of the Federal Home Loan Mortgage Corporation
described in section 303 of the Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1452); and
(iv)bonds, notes,
and debentures of the Commodity Credit Corporation described in section 4 of
the Act of March 8, 1938 (15 U.S.C. 713a–4); and
(D)the obligations
referred to in section 201 of the Social Security Act (42 U.S.C. 401).
(3)Distributions
from Crow Settlement FundThe Secretary shall disburse funds from
the Crow Settlement Fund in accordance with this section, as follows:
(A)Tribal compact
administration accountThe Secretary shall make expenditures from
this account for expenditures by the Tribe for Tribal Compact Administration,
upon request by the Tribe for an expenditure included in the definition of
Tribal Compact Administration.
(B)Economic
development accountThe Secretary shall disburse funds from this
account to the Tribe upon the Tribe’s presentation of an economic development
project proposed to be funded for an expenditure included in the definition of
Economic Development.
(C)Water
development project accountThe Secretary shall disburse funds
from this account to the Tribe upon the Tribe’s presentation of a request for
funding for a project included in the definition of Water Development
Project.
(D)Yellowtail dam
OM&R accountThe Secretary shall expend interest accrued on
the funds from this account in the prior fiscal year for Yellowtail Dam
OM&R costs in the subsequent year. The interest expended by the Secretary
shall be used to reduce the Yellowtail Dam OM&R costs to all tribal water
users on a pro rata basis for that year.
(E)The Secretary shall expend interest accrued on the funds
from this account in the prior fiscal year for CIP OM&R costs in the
subsequent year. The interest expended by the Secretary shall be used to reduce
the CIP OM&R costs to all tribal water users on a pro rata basis for that
year.
(4)
(A)The Tribe may withdraw any portion of amounts in the Crow
Settlement Fund on approval by the Secretary of a tribal management plan in
accordance with the Trust Fund Reform Act.
(B)
(i)In addition to the requirements under the Trust Fund
Reform Act, the tribal management plan of the Tribe under subparagraph (A)
shall require that the Tribe spend any amounts withdrawn from the Crow
Settlement Fund in accordance with this Act.
(ii)The
Secretary may carry out such judicial or administrative actions as the
Secretary determines to be necessary to enforce a tribal management plan to
ensure that amounts withdrawn by the Tribe from the Crow Settlement Fund under
this paragraph are used in accordance with this Act.
(C)The
Secretary and the Secretary of the Treasury shall not be liable for the
expenditure or investment of amounts withdrawn from the Crow Settlement Fund by
the Tribe under this paragraph.
(D)
(i)For each fiscal year, the Tribe shall submit to the
Secretary for approval an expenditure plan for any portion of the amounts
described in subparagraph (A) that the Tribe elects not to withdraw under this
paragraph during the fiscal year.
(ii)An
expenditure plan under clause (i) shall include a description of the manner in
which, and the purposes for which, funds of the Tribe remaining in the Crow
Settlement Fund will be used during subsequent fiscal years.
(iii)On
receipt of an expenditure plan under clause (i), the Secretary shall approve
the plan if the Secretary determines that the plan is—
(I)reasonable;
and
(II)consistent with
this Act.
(5)The Tribe shall submit to the Secretary annual reports
describing each expenditure by the Tribe of amounts in the Crow Settlement Fund
during the preceding calendar year.
(6)Certain per
capita distributions prohibitedNo amount in the Crow Settlement
Fund shall be distributed to any member of the Tribe on a per capita
basis.
(e)The
amounts in the Crow Settlement Fund shall be available for use by the Secretary
and withdrawal by the Tribe beginning on the enforceability date.
(f)The State contribution shall be provided in
accordance with article VI(A) of the Compact.
12.
(a)Streamflow and
lake level management plan
(1)In accordance
with Federal approval of the Compact, the Secretary is not limited from
exercising discretion as provided in section 4F of the Streamflow and Lake
Level Management Plan referred to in and part of the Compact.
(2)Bighorn Lake
water management, including the Streamflow and Lake Level Management Plan, is a
Federal activity and review and enforcement of any water management decisions
shall be as provided by Federal law.
(3)The Streamflow
and Lake Level Management Plan referred to in and part of the Compact shall be
interpreted to clearly reflect paragraphs (1) and (2).
(b)
(1)Notwithstanding
any other provision of law, the Tribe shall have the exclusive right to develop
and market power generation as a water development project on the Yellowtail
Afterbay Dam.
(2)The Bureau of
Reclamation shall cooperate with the Tribe on such project.
(3)Any hydroelectric
power generated under this provision shall be used or marketed by the
Tribe.
(4)The Tribe shall
retain any revenues from the sale of hydroelectric power generated under this
provision.
(5)The United States
shall have no trust obligation to monitor, administer, or account for the
revenues received by the Tribe, or the expenditure of the revenues.
(c)The Bureau of Reclamation shall consult with the Tribe
on at least a quarterly basis on all issues relating to the Bureau’s management
of Yellowtail Dam.
13.
(a)Waiver of
sovereign immunity by the United StatesExcept as provided in
subsections (a) through (c) of section 208 of the Department of Justice
Appropriation Act, 1953 (43 U.S.C. 666), nothing in this Act waives the
sovereign immunity of the United States.
(b)Other tribes
not adversely affectedNothing in this Act quantifies or
diminishes any land or water right, or any claim or entitlement to land or
water, of an Indian tribe, band, or community other than the Tribe.
(c)Limitation on
claims for reimbursementWith respect to Indian land within the
Reservation or the ceded strip—
(1)the United States
shall not submit against any Indian-owned land located within the Reservation
or the ceded strip any claim for reimbursement of the cost to the United States
of carrying out this Act and the Compact; and
(2)no assessment of
any Indian-owned land located within the Reservation or the ceded strip shall
be made regarding that cost.
(d)Limitation on
liability of United States
(1)The United States has no trust or other
obligation—
(A)to monitor,
administer, or account for, in any manner, any funds provided to the Tribe by
any party to the Compact other than the United States; or
(B)to review or
approve any expenditure of those funds.
(2)The
Tribe shall indemnify the United States, and hold the United States harmless,
with respect to all claims (including claims for takings or breach of trust)
arising from the receipt or expenditure of amounts described in paragraph
(1)(A).
(e)Nothing in this section affects any provision of law
(including regulations) in effect on the day before the date of enactment of
this Act with respect to preenforcement review of any Federal environmental
enforcement action.
14.Authorization
of appropriations
(a)Rehabilitation
and improvement of crow irrigation projectThere is authorized to
be appropriated $160,653,000, adjusted to reflect changes since May 1, 2008,
under section 5(d) for the rehabilitation and improvement of the Crow
Irrigation Project.
(b)Design and
construction of MR&I systemThere is authorized to be
appropriated $200,840,000, adjusted to reflect changes since May 1, 2008, under
section 6(d) for the design and construction of the MR&I System.
(c)Tribal compact
administrationThere is authorized to be appropriated $4,000,000
for Tribal Compact Administration.
(d)Economic
development projectsThere is authorized to be appropriated
$40,000,000 for Economic Development Projects.
(e)Water
development projectsThere is authorized to be appropriated
$37,594,000 (as adjusted to reflect changes during the period beginning on May
1, 2008, and ending on the date of appropriation) for Water Development
Projects.
(f)There is authorized to be appropriated $40,513,000 (as
adjusted to reflect changes during the period beginning on May 1, 2008, and
ending on the date of appropriation) for MR&I OM&R.
(g)There is authorized to be appropriated $30,876,000 (as
adjusted to reflect changes during the period beginning on May 1, 2008, and
ending on the date of appropriation) for Yellowtail Dam OM&R.
(h)There is authorized to be appropriated $12,736,000 (as
adjusted to reflect changes during the period beginning on May 1, 2008, and
ending on the date of appropriation) for CIP OM&R.
(i)There are authorized to be appropriated such sums as
are necessary to carry out all necessary environmental compliance activities
undertaken by the Secretary associated with the Compact and this Act.
(j)Bureau of
reclamation costs for crow irrigation projectThere are
authorized to be appropriated such sums as are necessary for the Bureau of
Reclamation to carry out its role as lead agency for the rehabilitation and
improvement of the Crow Irrigation Project.
(k)Bureau of
reclamation costs for MR&I systemThere are authorized to be
appropriated such sums as are necessary for the Bureau of Reclamation to carry
out its role as lead agency for the design and construction of the MR&I
System.
15.Repeal on
failure to meet effective dateIf the Secretary does not publish a
statement of findings under section 10(e) by December 31, 2014—
(1)this Act is
repealed effective January 1, 2015, and any action taken by the Secretary and
any contract or agreement pursuant to the authority provided under any
provision of this Act shall be void;
(2)any amounts
appropriated under section 14, together with any interest on those amounts,
shall immediately revert to the general fund of the Treasury; and
(3)any amounts made
available under section 14 that remain unexpended shall immediately revert to
the general fund of the Treasury.