[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 462 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                 S. 462

 To approve the settlement of the water rights claims of the Shoshone-
   Paiute Tribes of the Duck Valley Indian Reservation in Nevada, to 
require the Secretary of the Interior to carry out the settlement, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 31, 2007

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

_______________________________________________________________________

                                 A BILL


 
 To approve the settlement of the water rights claims of the Shoshone-
   Paiute Tribes of the Duck Valley Indian Reservation in Nevada, to 
require the Secretary of the Interior to carry out the settlement, and 
                          for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Shoshone-Paiute Tribes of Duck 
Valley Water Rights Settlement Act''.

SEC. 2. FINDINGS.

    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 United States, the 
        Tribes, the State, and the upstream water users have entered 
        into a settlement agreement to resolve permanently all water 
        rights of the Tribes in the State; and
            (8) the Tribes have certain water-related claims for 
        damages against the United States.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to resolve outstanding issues with respect to the East 
        Fork of the Owyhee River in the State in such a manner as to 
        provide important benefits to--
                    (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.

SEC. 4. 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.

SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT.

    (a) In General.--Except as provided in section 1f of article III of 
the Agreement, and except to the extent that the Agreement otherwise 
conflicts with this Act, the Agreement is approved, ratified, and 
confirmed.
    (b) Performance of Obligations.--The Secretary and any other head 
of a Federal agency obligated under the Agreement shall perform any 
action necessary to carry out an obligation under the Agreement in 
accordance with this Act.

SEC. 6. TRIBAL WATER RIGHTS.

    (a) In General.--The Secretary shall hold the tribal water rights 
in trust on behalf of the United States for the benefit of the Tribes.
    (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.

SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS.

    (a) Definition of Funds.--In this section, the term ``Funds'' 
means--
            (1) the Development Fund; and
            (2) the Maintenance Fund.
    (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.

SEC. 8. 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.

SEC. 9. MISCELLANEOUS.

    (a) General Disclaimer.--The parties to the Agreement expressly 
reserve all rights not specifically granted, recognized, or 
relinquished by--
            (1) the settlement described in the Agreement; or
            (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.
                                 <all>