1.This Act may be cited as the
Blackfeet Water Rights Settlement Act
of 2011
.
2.Congress finds that—
(1)the reservation of
the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana was
established from the aboriginal territory of the Tribe by the treaty between
the Tribe and the United States dated October 17, 1855 (11 Stat. 657);
(2)water was reserved
by the Tribe in that treaty—
(A)to fulfill the
promise of a homeland for members of the Tribe; and
(B)for the
governmental, economic, social, cultural, and religious well-being of the Tribe
and members of the Tribe;
(3)the water rights
of the Tribe have not been consistently protected by the United States
regarding—
(A)the use and
allocation of water on the Reservation, including—
(i)the
allocation of water of the St. Mary River and the Milk River in the treaty
between the United States and Great Britain relating to boundary waters between
the United States and Canada entered into force on May 13, 1910 (36 Stat.
2448); and
(ii)the
diversion of St. Mary River water for use by the Milk River Project of the
Bureau of Reclamation; and
(B)activities for
development carried out on and off the Reservation by non-members of the
Tribe;
(4)as of the date of
enactment of this Act, civil actions to determine the water rights of the Tribe
are pending in—
(A)the United States
District Court for the District of Montana in the action styled United
States v. Aageson
, numbered CIV–79–21–GF, and filed on April 5, 1979;
and
(B)the Montana Water
Court in the action styled In the Matter of the Adjudication of the
Existing and Reserved Rights to the Use of Water, Both Surface and Underground,
of the Blackfeet Tribe of the Blackfeet Reservation within the State of
Montana
and numbered WC–91–1;
(5)to avoid divisive,
expensive, and lengthy litigation of the water rights of the Tribe, to resolve
critical issues relating to administration and development of those water
rights, and to provide for appropriate mitigation measures, the Tribe, the
State of Montana, and the United States have negotiated the Blackfeet
Tribe-Montana Water Rights Compact;
(6)in addition to
quantification of the water rights of the Tribe, development of necessary water
supplies on the Reservation through the planning, design, and construction of
facilities and infrastructure is essential to carrying out the intent of the
treaty referred to in paragraph (1)—
(A)to create a
permanent homeland for members of the Tribe;
(B)to provide a
viable Reservation economy; and
(C)to implement the
Compact; and
(7)to fulfill the
trust responsibility of the United States to Indian tribes and to promote
tribal sovereignty and economic self-sufficiency, it is the policy of the
United States to resolve tribal reserved water rights claims without lengthy
and costly litigation.
3.The purposes of this Act are—
(1)to authorize
certain projects on the Reservation to implement the Compact, the Birch Creek
Agreement, and this Act in a manner that—
(A)maximizes the
benefits of the water rights of the Tribe established in the Compact;
and
(B)ensures for the
Tribe and members of the Tribe the benefits of a permanent homeland, including
cultural, economic, social, and governmental benefits;
(2)to authorize
certain modifications of the purposes and operation of certain Bureau of
Reclamation facilities to implement the Compact and this Act;
(3)to authorize the
rehabilitation, improvement, and completion of the Blackfeet Irrigation
Project—
(A)to maximize the
benefits of the Blackfeet Irrigation Project for all project water users;
and
(B)to implement the
Compact and the Birch Creek Agreement;
(4)to approve,
ratify, and confirm the water rights Compact;
(5)to require the
Secretary of the Interior—
(A)to implement the
Compact; and
(B)to carry out the
obligations of the United States under the Compact and this Act;
(6)to provide for the
final resolution of all water rights claims among—
(A)the United States,
on behalf of the Tribe and members of the Tribe;
(B)the United States,
on behalf of the allottees;
(C)the Tribe, on
behalf of the Tribe and members of the Tribe; and
(D)the State of
Montana; and
(7)to authorize the
actions, agreements, and appropriations necessary to implement the Compact and
this Act.
4.In this Act:
(1)The
term allottee means any individual who owns or holds a trust
allotment or interest in a trust allotment on the Reservation pursuant to the
Act of February 8, 1887 (25 U.S.C. 331; 24 Stat. 388, chapter 119), (commonly
known as the General Allotment Act
), the matter under the
heading Montana
of title II of the Act of March 1, 1907 (34
Stat. 1035, chapter 2285), and the Act of June 30, 1919 (41 Stat. 3, chapter
4), subject to the terms and conditions of those Acts.
(2)Available St.
Mary River waterThe term available St. Mary River
water means—
(A)water from the St.
Mary River allocated to the United States under the treaty between the United
States and Great Britain relating to boundary waters between the United States
and Canada entered into force on May 13, 1910 (36 Stat. 2448), minus the
quantity of water required for the Milk River Project water right; and
(B)water that
is—
(i)otherwise part of
the Milk River Project water right; and
(ii)made available by
the United States to the Tribe without any net reduction of the legal
entitlement to water of any water user under the jurisdiction of an entity that
is a party to a contract for water from the Milk River Project water right, as
determined—
(I)initially, by the
Secretary; and
(II)subsequently, by
a court of competent jurisdiction.
(3)The term Birch Creek Agreement means the
agreement between the Tribe and the State regarding Birch Creek water use dated
January 31, 2008.
(4)Blackfeet
irrigation projectThe term Blackfeet Irrigation
Project means the irrigation project on the Reservation authorized by
the matter under the heading Montana
of title II of the Act of
March 1, 1907 (34 Stat. 1035, chapter 2285), and administered by the Bureau of
Indian Affairs.
(5)The
term Compact means the water rights agreement (including any
appendix or amendment to the agreement) among the Tribe, the State, and the
United States that was—
(A)ratified by the
legislature of the State, as codified in section 85–20–1501 of the Montana Code
Annotated (2009); and
(B)the subject of
Blackfeet Resolution No. 184–2008.
(6)The term Joint Board means the joint board of
control of the Milk River Project established in accordance with State
law.
(7)The term Lake Elwell means the water
impounded on the Marias River in the State by Tiber Dam, a feature of the Lower
Marias Unit of the Pick-Sloan Missouri River Basin Program authorized by
section 9 of the Act of December 22, 1944 (commonly known as the Flood
Control Act of 1944
), (58 Stat. 891, chapter 665).
(8)The term Lake Sherburne Reservoir means
the storage facility of the Milk River Project authorized by the Secretary as
part of the St. Mary storage unit on March 25, 1905.
(9)
(A)The term Milk River Project means the Bureau
of Reclamation project conditionally approved by the Secretary on March 14,
1903, pursuant to the Act of June 17, 1902 (32 Stat. 388, chapter 1093),
commencing at Lake Sherburne Reservoir and providing water to a point
approximately 6 miles east of Nashua, Montana.
(B)The
term Milk River Project includes—
(i)the
St. Mary storage unit;
(ii)the
Fresno Dam; and
(iii)the Dodson
pumping unit.
(10)Milk river
project water rightThe term Milk River Project water
right includes any water right held by the Bureau of Reclamation on
behalf of the Milk River Project, as finally adjudicated by the Montana Water
Court.
(11)The term Missouri River Basin means the
hydrologic basin of the Missouri River (including tributaries).
(12)The term Montana Water Court means the court
established pursuant to chapter 7 of title 3, Montana Code Annotated, for the
adjudication of water rights in the State.
(13)Pondera county
canal and reservoir company projectThe term Pondera County
Canal and Reservoir Company Project means the project authorized in part
by section 4 of the Act of August 18, 1894 (28 Stat. 422) and lying south of
Birch Creek in Montana Water Court Basin 41M.
(14)The
term Reservation means the Blackfeet Indian Reservation of
Montana, as in existence on the date of enactment of this Act.
(15)St. Mary river
water rightThe term St. Mary River water right
means the water right of the Tribe in the St. Mary River established by article
III.G.1.a.i. of the Compact and implemented in accordance with article IV.D.4
of the Compact.
(16)The
term Secretary means the Secretary of the Interior.
(17)The
term State means the State of Montana, including the officers,
agencies, departments, and political subdivisions of that State.
(18)The term tribal water code means the code
contained in the ordinance of the Tribe numbered 62, adopted by the business
council of the Tribe pursuant to the resolution numbered 127–80 on May 15,
1980, and approved by the Blackfeet Indian Agency Superintendent of the Bureau
of Indian Affairs on May 23, 1980, as amended in accordance with the Compact
and this Act.
(19)The term tribal water right means—
(A)any right of the
Tribe (including any member of the Tribe or allottee) to divert, use, or store
water, as established in the Compact;
(B)any allocation of
water to the Tribe from Lake Elwell pursuant to section 5(c); and
(C)any allocation of
water to the Tribe from Lake Sherburne Reservoir and the available St. Mary
River water or any other source pursuant to section 5 that fulfills the St.
Mary River water right of the Tribe under the Compact.
(20)The
term Tribe means the Blackfeet Tribe of the Blackfeet Indian
Reservation of Montana, including the officers, agencies, and departments of
that tribe.
(21)Water rights
arising under state lawThe term Water Rights Arising Under
State Law has the meaning given the term in article II.52 of the
Compact.
5.
(a)
(1)
(A)In providing to the Tribe the St. Mary River water right,
the Secretary shall allocate to the Tribe 50,000 acre-feet per year of stored
water in Lake Sherburne Reservoir as part of the tribal water right.
(B)The
Tribe shall not be required to pay any operation, maintenance, or replacement
costs, capital costs, or other costs associated with the allocation under
subparagraph (A).
(C)The allocation under subparagraph (A) shall not be
increased by any year-to-year carryover storage.
(2)
(A)
(i)The Tribe and the Secretary, acting through the
Commissioner of Reclamation, shall enter into an agreement to lease the water
allocated to the Tribe under paragraph (1) for use by the Secretary for the
Milk River Project, in accordance with such terms and conditions on which the
Tribe and the Secretary may agree.
(ii)
(I)If the Tribe and the Secretary fail to agree to terms and
conditions as described in clause (i) by the date that is 1 year after the date
of enactment of this Act, a mediator acceptable to the Tribe and the Secretary
shall be appointed by the Chief Judge of the United States District Court for
the District of Montana to assist the parties in reaching an agreement.
(II)The
costs of a mediator appointed under subclause (I) shall be paid by the
Secretary.
(B)A lease under subparagraph (A) shall remain in effect
until the date described in paragraph (3)(E).
(C)Milk river
project water usersNo Milk River Project water user or other
entity that is a party to any contract on behalf of such a water user shall be
required to pay any costs associated with—
(i)the
allocation to the Tribe under paragraph (1); or
(ii)a
lease under this paragraph.
(3)Identification
of available st. mary river water
(A)Investigations
and studiesThe Secretary, in cooperation with the Tribe, may
carry out any appropriate investigation or study to identify available St. Mary
River water to provide to the Tribe the St. Mary River water right.
(B)The
Secretary may plan, design, and construct such facilities as the Secretary, the
Tribe, and the State determine to be necessary to provide to the Tribe the St.
Mary River water right.
(C)The Secretary may enter into such cooperative agreements or
contracts under the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) with the Tribe as the Secretary determines to be necessary
to carry out subparagraphs (A) and (B).
(D)Modifications to
milk river projectThe Secretary, in consultation with the Tribe,
the State, the Fort Belknap Indian Community, the Joint Board, and other
affected stakeholders, may make such modifications as are necessary to carry
out this paragraph to—
(i)the
operating procedures of the Milk River Project; or
(ii)any
federally owned facility of the Milk River Project.
(E)Beginning on the date on which the Secretary, the Tribe, and
the State agree in writing that water has been identified from available St.
Mary River water or any other source, and is available to satisfy any portion
of the St. Mary River water right in accordance with articles III.G.1.a.i and
IV.D.4 of the Compact—
(i)the
Tribe may begin to use that water; and
(ii)the
allocation to the Tribe under paragraph (1) and the lease under paragraph (2)
shall terminate with respect to that quantum of water.
(b)Milk river
project rights-of-Way and easements
(1)As soon as practicable after the date of enactment of
this Act, but not later than the enforceability date described in section
12(e), the Secretary shall resolve all issues relating to the use by the United
States of tribal land or allotted land for purposes of the Milk River Project,
including the payment to the Tribe and members of the Tribe of compensation for
that use, notwithstanding any other provision of law, if such
compensation—
(A)has not previously
been paid; or
(B)was
inadequate.
(2)Action by
secretary of treasuryNotwithstanding any other provision of law,
as soon as practicable after the date of enactment of this Act, but not later
than the enforceability date described in section 12(e), the Secretary of the
Treasury shall return to the Tribe all amounts paid by the Tribe for land
relinquished to the Tribe pursuant to the Act of August 28, 1937 (50 Stat. 864,
chapter 868), including interest on those amounts.
(c)
(1)
(A)As part of the tribal water right, the Secretary shall
permanently allocate to the Tribe all remaining unallocated water in Lake
Elwell, as measured at the outlet works of the dam, minus any quantity of that
water that may be allocated to the Fort Belknap Indian Community, as agreed to
by the Tribe and the Fort Belknap Indian Community, for use by the Tribe for
any beneficial purpose on or off the Reservation.
(B)The Secretary may enter into an agreement with the Tribe to
establish a procedure through which the Tribe may request and use the
allocation under subparagraph (A).
(2)The priority date of the allocation to the Tribe under
paragraph (1) shall be the priority date of the Lake Elwell water right held by
the Bureau of Reclamation.
(3)The
Tribe shall not be required to pay any annual operation, maintenance, or
replacement costs, capital costs, or other costs associated with the allocation
under paragraph (1).
(4)The Tribe may use, lease, contract, exchange, or enter into
other agreements for use of the water allocated to the Tribe under paragraph
(1) if—
(A)the use of water
that is the subject of such an agreement occurs within the Missouri River
Basin; and
(B)the agreement does
not permanently alienate any water allocated to the Tribe under paragraph
(1).
(5)The allocation under paragraph (1) takes effect on the
enforceability date described in section 12(e).
(6)The allocation under paragraph (1) shall not be
increased by any year-to-year carryover storage.
(7)
(A)Nothing in this subsection alters or diminishes the
allocation from Lake Elwell to the Chippewa Cree Tribe pursuant to the Chippewa
Cree Tribe of The Rocky Boy’s Reservation Indian Reserved Water Rights
Settlement and Water Supply Enhancement Act of 1999 (Public Law 106–163; 113
Stat 1778).
(B)No
transportation facilities requirementExcept as otherwise
provided in this Act, nothing in this subsection requires the United States to
provide any facility for transport to the Reservation or any other location of
the water allocated to the Tribe under this subsection.
(8)Development and
delivery costsExcept as otherwise provided in this Act, the
United States is not required to pay the cost of developing or delivering to
the Reservation any water allocated under this subsection.
(d)Blackfeet
irrigation project
(1)The Secretary shall carry out such activities as are
necessary relating to—
(A)planning, design,
and construction for rehabilitation and improvement of the Blackfeet Irrigation
Project; and
(B)the completion to
authorized acreage of the Blackfeet Irrigation Project.
(2)Four horns dam
and reservoir
(A)The Secretary shall carry out such activities as are
necessary relating to planning, design, and construction for rehabilitation and
improvement of the Four Horns Dam and Reservoir and associated delivery systems
of the Blackfeet Irrigation Project, including—
(i)the
rehabilitation and improvement of the Four Horns feeder canal system to a
capacity of not less than 300 cubic feet per second;
(ii)the
enlargement to maximum practical capacity of the off-stream Four Horns Dam and
Reservoir;
(iii)construction of
facilities to deliver not less than 15,000 acre-feet of water per year from the
enlarged Four Horns Dam and Reservoir to a point on Birch Creek to be
designated by the Tribe and the State for delivery of water to the water
delivery system of the Pondera County Canal and Reservoir Company
Project;
(iv)rehabilitation
and improvement of the outlet canal delivery system from Four Horns Dam and
Reservoir to Blacktail Creek;
(v)rehabilitation and
improvement of the Badger-Fisher main canal; and
(vi)measures to
enhance on-farm efficiency in the Badger-Fisher irrigation unit of the
Blackfeet Irrigation Project.
(B)On receipt of a request by the Tribe, the Secretary
shall enter into a cooperative agreement or contract under the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) with
the Tribe to carry out the activities under this paragraph.
(C)Allocation of
excess waterNotwithstanding any other provision of law, on
completion of the activities under this paragraph, the Secretary shall allocate
to the Tribe, at no cost, all stored water in Four Horns Reservoir in excess of
the quantity of water necessary to serve the land within the Blackfeet
Irrigation Project, but not less than 15,000 acre-feet, for—
(i)fulfillment of the
obligations of the Tribe under the Birch Creek Agreement to deliver water to
holders of Water Rights Arising Under State Law in Birch Creek; and
(ii)use
or lease by the Tribe for any purpose in accordance with this Act, the Compact,
and the Birch Creek Agreement.
(D)Identification
of facilities
(i)The Tribe, the State, and the Regional Director of the
Great Plains Region of the Bureau of Reclamation, in consultation with the
Bureau of Indian Affairs, shall—
(I)identify each
facility or portion of a facility to be constructed, rehabilitated, or improved
primarily for the purpose of providing to the Tribe the allocation under
subparagraph (C); and
(II)agree on the
ownership, operation, maintenance, and replacement obligations associated with
those facilities and portions of facilities.
(ii)No
Blackfeet Irrigation Project water user or holder of Water Rights Arising Under
State law in Birch Creek shall be required to pay any costs associated with any
facility or portion of a facility identified under clause (i).
(E)As a condition of ratification of the Compact by
this Act, the State shall contribute to the cost of the activities under this
paragraph not less than $20,000,000.
(3)
(A)Notwithstanding any other provision of law, on receipt of
a request by the Tribe, the Secretary shall transfer to the Tribe, at no cost,
title in and to each facility, asset, and other property of the Blackfeet
Irrigation Project.
(B)On
transfer of title under subparagraph (A), the Blackfeet Irrigation Project
shall be considered to be owned, operated, and managed by the Tribe.
(C)Operation and
maintenanceThe Tribe shall promulgate criteria and procedures,
subject to the approval of the Secretary, under which the Tribe shall operate
and maintain the Blackfeet Irrigation Project, including—
(i)a
due process system for the consideration and determination of any request by a
water user for an allocation of water that provides protection not less
stringent than the protection available under Federal law, including a process
for—
(I)appeal and
adjudication of denied or disputed distributions of water; and
(II)resolution of
contested administrative decisions; and
(ii)a
system for establishing water rates, including the processes described in
subclauses (I) and (II) of clause (i).
(4)Irrigation
efficiency in upper birch drainageAny activity carried out by
the Tribe in the Upper Birch Drainage (as defined in article II.50 of the
Compact) using funds made available under this Act shall achieve an irrigation
efficiency of not less than 50 percent.
(e)Reclamation
water settlements fundIn carrying out this section, the
Secretary may use amounts in the Reclamation Water Settlements Fund established
by subsection (a) of section 10501 of the Omnibus Public Land Management Act of
2009 (43 U.S.C. 407) pursuant to subsection (c)(3)(B)(iii) of that
section.
6.Approval of
compact and birch creek agreement
(a)
(1)Except as modified by this Act, and to the extent that
the Compact and the Birch Creek Agreement do not conflict with this Act, the
Compact and the Birch Creek Agreement are authorized, ratified, and
confirmed.
(2)To
the extent that any amendment is executed to ensure that the Compact or the
Birch Creek Agreement is consistent with this Act, the amendment is authorized,
ratified, and confirmed.
(b)
(1)To the extent that the Compact and the Birch Creek
Agreement do not conflict with this Act, the Secretary shall promptly execute
the Compact and the Birch Creek Agreement.
(2)Nothing in this subsection precludes the Secretary
from approving a modification to any appendix or exhibit to the Compact or the
Birch Creek Agreement that is not inconsistent with this Act, subject to
section 2116 of the Revised Statutes (25 U.S.C. 177) and other applicable
Federal law (including regulations).
(c)Action by other
departments and agenciesThe Secretary and the head of each other
appropriate Federal department or agency shall carry out such activities as are
necessary to implement the Compact, the Birch Creek Agreement, and this
Act.
7.
(a)The
tribal water right—
(1)shall be held in
trust by the United States for the benefit of the Tribe; and
(2)shall not be
subject to loss by abandonment, forfeiture, or nonuse.
(b)Each allottee shall be entitled to a just and
equitable allocation of the tribal water right for irrigation purposes pursuant
to section 7 of the Act of February 8, 1887 (25 U.S.C. 381), in accordance with
the Compact and the tribal water code.
(c)Federal reserved
water rightsAny right to Federal reserved water of a member of
the Tribe, an allottee, or an owner of fee land within the boundaries of the
Reservation shall be—
(1)considered to be
satisfied by the tribal water right; and
(2)governed in
accordance with the terms and conditions of the Compact, this Act, and the
tribal water code (including any applicable requirement to obtain a permit
under the tribal water code).
(d)Limitation on
certain claimsNotwithstanding any other provision of law, no
claim to a Federal reserved water right of an owner of fee land that was within
the boundaries of the Reservation on June 30, 1996, as the successor to an
allottee may be sustained as a matter of Federal law if the claim was not filed
in the Montana water rights adjudication (Mont. Code Ann. 85–2–212, et seq.) by
the required filing date.
(e)
(1)Not
later than 180 days after the date of enactment of this Act, the Tribe shall
amend the tribal water code, subject to the approval of the Secretary under
paragraph (2)(A), as necessary to administer the tribal water right in
accordance with article IV.C of the Compact.
(2)
(A)No provision of the tribal water code (or any amendment
to the tribal water code) that affects any right of an allottee shall take
effect until the date on which the provision is approved by the
Secretary.
(B)
(i)During the period beginning on the date of amendment of
the tribal water code under paragraph (1) and ending on the date of approval of
the amendment by the Secretary under subparagraph (A), the tribal water right
shall be administered by the Tribe pursuant to the tribal water code as in
existence on the day before the date of enactment of this Act, to the extent
that the tribal water code is not inconsistent with the Compact and this
Act.
(ii)If
any inconsistency exists between the tribal water code as in existence on the
day before the date of enactment of this Act and the Compact or this Act, the
applicable provision of the Compact or this Act shall control.
(3)No member of the Tribe, allottee, or owner of fee land
within the boundaries of the Reservation shall file against the United States a
claim relating to water under the tribal water right pursuant to section 7 of
the Act of February 8, 1887 (25 U.S.C. 381), or any other provision of law or
otherwise request relief from the Secretary until the member, allottee, or
owner exhausts each applicable remedy under the tribal water code or other
applicable tribal or Federal law.
(f)Lease of tribal
water right
(1)The Tribe, without approval of the Secretary, may lease
any portion of the tribal water right in accordance with article IV.D.2 of the
Compact for use off the Reservation within the Missouri River Basin, subject to
the tribal water code and the terms and conditions of the Compact and
applicable Federal law.
(2)Any funds paid to the Tribe under a lease under this
subsection shall be the property of the Tribe, and the United States shall have
no trust or other obligation to monitor, administer, or account for the
funds.
(3)Prohibition on
permanent alienationNo portion of the tribal water right may be
permanently alienated pursuant to a lease under this subsection.
8.Blackfeet land
and water development fund
(a)There
is established in the Treasury of the United States a fund, to be known as the
Blackfeet Land and Water Development Fund (referred to in this
section as the Fund), to be used to pay or reimburse costs
incurred by the Tribe for—
(1)the acquisition of
land or water rights;
(2)water resources
planning, development, and construction, including storage and
irrigation;
(3)agricultural
development;
(4)restoring or
improving fish or wildlife habitat;
(5)fish or wildlife
production;
(6)any other water
storage project, land or land-related project, or water or water-related
project;
(7)cultural
preservation;
(8)(A)the operation and
maintenance of water and water-related projects; and
(B)environmental compliance relating to
those projects constructed under this Act;
(9)development and
support of administrative infrastructure to implement the Compact, the Birch
Creek Agreement, and this Act, including the development of the tribal water
code;
(10)design and
construction of water supply and sewer systems and related facilities for
tribal communities;
(11)measures to
address environmental conditions on the Reservation; and
(12)water-related
economic development projects.
(b)The
Secretary shall manage the Fund in accordance with the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), this Act, and the
Compact.
(c)The
Secretary shall invest amounts in the Fund in accordance with—
(1)the Act of April
1, 1880 (25 U.S.C. 161); and
(2)the first section
of the Act of June 24, 1938 (25 U.S.C. 162a).
(d)No fiscal year
limitationAmounts made available under this Act shall be
available for expenditure or withdrawal without fiscal year limitation.
(e)Expenditures and
withdrawals
(1)
(A)The Tribe may withdraw any portion of amounts in the Fund
on approval by the Secretary of a tribal management plan under the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et
seq.).
(B)In
addition to the requirements under that Act (25 U.S.C. 4001 et seq.), the
tribal management plan shall require that the Tribe shall use any amounts
withdrawn from the Fund for the purposes described in subsection (a).
(C)The Secretary may take judicial or administrative
action to enforce the provisions of a tribal management plan to ensure that
amounts withdrawn from the Fund under the plan are used in accordance with this
Act and the Compact.
(D)On
withdrawal by the Tribe of amounts in the Fund, the Secretary and the Secretary
of the Treasury shall not retain liability for the expenditure or investment of
those amounts.
(2)
(A)The Tribe shall submit to the Secretary for approval an
expenditure plan for any portion of the amounts in the Fund that the Tribe does
not withdraw pursuant to this subsection.
(B)The
expenditure plan shall describe the manner in which, and the purposes for
which, the amounts remaining in the Fund will be used.
(C)The
Secretary shall approve an expenditure plan under this paragraph if the
Secretary determines that the plan is—
(i)reasonable;
and
(ii)consistent with
this Act and the Compact.
(3)The
Tribe shall submit to the Secretary an annual report that describes each
expenditure from the Fund during the year covered by the report.
(f)No portion of the Fund or the income accruing to
the Fund shall be distributed to any member of the Tribe on a per capita
basis.
9.Birch creek
mitigation fund
(a)There
is established in the Treasury of the United States a fund, to be known as the
Birch Creek Mitigation Fund (referred to in this section as the
Fund) to be used to mitigate the impacts of development of the
tribal water right described in article III.C.1. of the Compact on the Birch
Creek water supplies of the Pondera County Canal and Reservoir Company
Project.
(b)The
Secretary, acting through the Commissioner of Reclamation, shall manage the
Fund in accordance with this section.
(c)Amounts from the Fund may not be disbursed until the
expiration of the term of the Birch Creek Agreement.
10.Water rights in
lewis and clark national forestAs part of the tribal water right, the Tribe
shall hold the rights to water in the Lewis and Clark National Forest
identified in the applicable claims filed by the United States on behalf of the
Tribe, as those claims are finally decreed by the Montana Water Court.
11.
(a)Identification
of alternativesThe Secretary shall identify and implement
alternatives to resolve any conflict between the Milk River water rights of the
Tribe and the Fort Belknap Indian Community in a manner that ensures that the
full allocation of the water rights of each Indian tribe under the water rights
compacts of the Indian tribes are fully satisfied.
(b)The Secretary shall obtain the agreement of the Tribe and
the Fort Belknap Indian Community to any alternative identified under
subsection (a).
(c)Amounts
used by the Secretary to implement any alternative identified under subsection
(a) shall be in addition to the amounts authorized for the water rights
settlements of the Tribe and the Fort Belknap Indian Community.
12.Waivers and
releases of claims
(a)Waiver and
release of claims by tribe and united states as trustee for
tribeAs a condition for recognition of the tribal water right
and other benefits under the Compact and this Act and subject to the retention
of claims and rights under subsection (c), the Tribe and the United States,
acting as trustee for the Tribe and the allottees, shall waive and release each
claim for a water right that is or could be asserted in the civil action styled
In the Matter of the Adjudication of the Existing and Reserved Rights to
the Use of Water, Both Surface and Underground, of the Blackfeet Tribe of the
Blackfeet Reservation within the State of Montana
and numbered WC–91–1,
except to the extent that such a claim is recognized in the Compact or this
Act.
(b)Claims against
united statesAs a condition of receiving the tribal water right
and other benefits under the Compact and this Act and subject to the retention
of claims and rights under subsection (c), the Tribe shall waive and release
each claim against the United States—
(1)for a water right
that is or could be asserted in the civil action referred to in subsection
(a);
(2)for failure to
protect, acquire, replace, or develop any water right that accrued as of the
date of enactment of this Act; or
(3)arising from the
negotiation or adoption of the Compact.
(c)Retention of
certain claims and rightsNotwithstanding the waivers and
releases required under this section, the Tribe and the United States, acting
as trustee for the Tribe and the allottees, shall retain—
(1)all claims for
enforcement of—
(A)the
Compact;
(B)any consent decree
that settles a water right claim of the Tribe; or
(C)this Act;
(2)all rights to use
and protect any water right acquired after the date of enactment of this
Act;
(3)all claims to
water rights filed by the United States on behalf of the Tribe in Glacier
National Park for rights retained under the agreement dated September 19, 1895,
and ratified on June 10, 1896 (29 Stat. 321, chapter 398), unless the water
right claims are dismissed in their entirety on entry of a final nonappelable
decision by a court of competent jurisdiction in any civil action to which the
Tribe is a party;
(4)all claims
relating to activities affecting quality of water; and
(5)all rights,
remedies, privileges, immunities, and powers not specifically waived and
released pursuant to the Compact or this Act.
(d)Effective date
of release and waiversThe waivers under subsection (a) shall
take effect on the enforceability date.
(e)
(1)The enforceability date is the date on which the
Secretary publishes in the Federal Register a statement of findings
that—
(A)all parties to the
Compact have executed the Compact;
(B)the Montana Water
Court has issued a final judgment and decree approving the Compact, or if the
Montana Water Court lacks jurisdiction, the United States district court for
the appropriate jurisdiction has approved the Compact as a consent decree, and
that approval is final;
(C)the Compact has
been ratified by a majority of eligible members of the Tribe voting in a
referendum conducted by the Tribe pursuant to tribal law;
(D)the waivers and
releases under subsection (a) have been executed by the Tribe and the
Secretary;
(E)the Tribe and the
Secretary have entered into the agreement described in section
5(a)(2)(A);
(F)the Secretary has
fulfilled the requirements of section 5(b)(1); and
(G)the amounts
authorized to be appropriated under section 14 have been appropriated.
(2)Effect of
failure to publishIf the Secretary fails to publish a statement
of findings under paragraph (1) by December 31, 2016, or such extended date as
is agreed to by the Tribe and the Secretary after reasonable notice to the
State—
(A)the ratification
of the Compact is void;
(B)the waivers and
release of claims under this Act are nullified;
(C)the authority
provided by this Act shall terminate; and
(D)any unexpended or
uncommitted funds made available under section 14 shall revert to the general
fund of the Treasury.
(3)
(A)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.
(B)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.
(f)Nothing
in the Compact or this Act—
(1)affects the
ability of the United States to carry out any action—
(A)authorized by law
(including regulations), including any law relating to health, safety, or the
environment (including the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et seq.), and the Solid Waste Disposal Act (42 U.S.C. 6901 et
seq.)); or
(B)as trustee for any
other Indian tribe or the allottees; or
(2)confers
jurisdiction on any State court—
(A)to enforce Federal
environmental law regarding the duties of the United States; or
(B)to conduct
judicial review of a Federal agency action.
13.
(a)
(1)Except as provided in paragraph (2), the United States
consents to the jurisdiction of—
(A)the
Blackfeet-Montana Compact Board to achieve resolution of any dispute under the
Compact; and
(B)any court of
competent jurisdiction for the enforcement of a decision of that board.
(2)The
consent of the United States to jurisdiction under paragraph (1) does not
extend to any civil action for monetary damages, costs, or attorney’s
fees.
(b)No effect on
other indian tribesNothing in this Act quantifies or diminishes
any land or water right, or any claim or entitlement to land or water, of an
Indian tribe other than the Tribe.
(c)The execution of the Compact by the Secretary shall not
constitute a major Federal action under the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.).
(d)Compliance with
federal lawIn carrying out the Compact, the Secretary shall
comply with—
(1)the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(2)the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.); and
(3)all other
applicable Federal environmental law (including regulations).
(e)Nothing in this Act prohibits the Tribe from seeking
additional funds for tribal programs or purposes or other funds from the United
States or the State based on the status of the Tribe as an Indian tribe.
(f)Acquisition and
exercise of other water rightsNothing in this Act or the Compact
precludes the acquisition or exercise of—
(1)a
State water right by the Tribe or any member of the Tribe outside the
Reservation through purchase of the right, establishment of title to land
outside the Reservation, or submission of an application in accordance with
State law, except as provided in article III.J of the Compact; or
(2)a
Federal reserved water right associated with Federal land outside the
Reservation as the result of—
(A)the transfer of
that land to the Tribe; or
(B)the establishment
of title by the Tribe to the land.
(g)Nothing in this Act or the Compact prohibits the Tribe, a
member of the Tribe, an allottee, or the United States in any capacity from
objecting to any claim to a water right filed in any general stream
adjudication in the Montana Water Court.
(h)Import and
storage in basinsNothing in this Act or the Compact prevents the
Tribe from participating in any project to import water to, or improve storage
in, any basin affecting the Reservation.
(i)Enforcement of
existing law; damage claimsNothing in the Compact or this Act
limits—
(1)the ability of the
United States, the State, or the Tribe to enforce any Federal, State, or tribal
law (including common law) relating to the protection of the environment;
or
(2)the right to bring
any claim of the Tribe, a member of the Tribe, or an allottee, or of the United
States on behalf of the Tribe, a member of the Tribe, or an allottee,
for—
(A)damage to water
quality on the Reservation; or
(B)depletion of
surface flows or groundwater.
(j)Nothing in this Act establishes a precedent in any
civil action relating to—
(1)a
reserved water right; or
(2)the interpretation
or administration of any compact between the United States and any
State.
(k)No effect on
services or programs for indiansNo payment made or benefit
provided pursuant to this Act shall result in the reduction or denial of any
Federal service or program to any Indian tribe or member of an Indian tribe to
which the Indian tribe or member is otherwise entitled or eligible for because
of—
(1)the status of the
Tribe as a federally recognized Indian tribe; or
(2)the status of such
a member as an Indian.
(l)Applications
of the Tribe shall be given preference under section 7(a) of the Federal Power
Act (16 U.S.C. 800(a)) for issuance of any preliminary permit or license
involving a Federal facility within the Reservation.
(m)Conflicts
between act and compactIf a provision of this Act conflicts with
a provision of the Compact, the provision of this Act shall prevail.
14.Authorization of
appropriations
(a)St. mary river
allocationThere are authorized to be appropriated to the
Secretary such sums as are necessary to carry out section 5(a).
(b)Blackfeet
irrigation projectThere is authorized to be appropriated to the
Secretary to carry out section 5(d) $125,000,000, adjusted as appropriate based
on ordinary fluctuations during the period beginning on May 1, 2011, and ending
on the date on which that amount is appropriated in construction cost indices
applicable to the types of construction involved in the rehabilitation and
improvement activities under that section.
(c)Blackfeet land
and water development fundThere is authorized to be appropriated
to the Secretary for deposit in the Blackfeet Land and Water Development Fund
established by section 8(a) $93,200,000 for each of fiscal years 2012 through
2016.
(d)There are authorized to be appropriated to the Secretary
such sums as are necessary to carry out section 11 (including the
implementation of alternatives identified under subsection (a) of that
section).