[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2154 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 2154

 To approve the Kickapoo Tribe Water Rights Settlement Agreement, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2017

   Mr. Moran introduced the following bill; which was read twice and 
              referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
 To approve the Kickapoo Tribe Water Rights Settlement Agreement, 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.

    (a) Short Title; Table of Contents.--This Act may be cited as the 
``Kickapoo Tribe in Kansas Water Rights Settlement Agreement Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title.
Sec. 2. Purposes.
Sec. 3. Definitions.
Sec. 4. Approval of the Kickapoo Tribe Water Rights Settlement 
                            Agreement.
Sec. 5. Kickapoo Tribe Water Rights.
Sec. 6. Effect of Kickapoo Tribe Water Rights Settlement Agreement and 
                            Act.
Sec. 7. Water facilities.
Sec. 8. Waiver and release of claims; retention of claims.
Sec. 9. Judicial proceedings.
Sec. 10. Miscellaneous provisions.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to achieve a fair, equitable, and final settlement of 
        claims to water rights in the Delaware River Basin in Kansas 
        for--
                    (A) the Tribe;
                    (B) its members and allottees; and
                    (C) the United States, acting in its capacity as 
                trustee for the Tribe and its members and allottees;
            (2) to authorize, ratify, and confirm provisions of the 
        Kickapoo Tribe Water Rights Settlement Agreement pertaining to 
        the Tribal water rights negotiated by the Tribe, the State of 
        Kansas, and the United States, and prior to the passage of this 
        Act, entered into by the Tribe and the State of Kansas;
            (3) to authorize and direct the Secretary--
                    (A) to execute the Kickapoo Tribe Water Rights 
                Settlement Agreement; and
                    (B) to take any other action necessary to carry out 
                the Kickapoo Tribe Water Rights Settlement Agreement in 
                accordance with this Act; and
            (4) to direct the Natural Resources Conservation Service of 
        the Department of Agriculture to take certain actions under the 
        authority of the Watershed Protection and Flood Prevention Act 
        (16 U.S.C. 1001 et seq.) and other actions consistent with this 
        Act.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Act.--The term ``Act'' means the Act of Congress to 
        authorize the United States to enter into the Kickapoo Tribe 
        Water Rights Settlement Agreement and to execute the 
        obligations set forth herein, and for other purposes set forth 
        herein.
            (2) Allotted lands.--The term ``allotted lands'' means 
        lands within the boundaries of the Reservation that were 
        allotted to individual Kickapoo Tribe members in accordance 
        with a treaty or Federal statute, and that are held in trust by 
        the United States for the benefit of one or more members or 
        successors in interest thereto.
            (3) Allottee.--The term ``allottee'' means an individual 
        who holds a beneficial real property interest in an Indian 
        allotment that is--
                    (A) located within the Reservation; and
                    (B) held in trust by the United States.
            (4) Court.--The term ``Court'' means the United States 
        District Court for the District of Kansas unless otherwise 
        specified herein.
            (5) Delaware river basin.--The term ``Delaware River 
        Basin'' means that area of land, depicted on the map attached 
        as Exhibit 1 to the Kickapoo Tribe Water Rights Settlement 
        Agreement, within which the Chief Engineer will administer 
        nondomestic Kansas water rights to protect the Tribal water 
        rights.
            (6) Enforceability date.--The term ``enforceability date'' 
        means the date on which the Secretary publishes in the Federal 
        Register the statement of findings described in section 6(c).
            (7) Indian tribe.--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. 5304).
            (8) Kansas water rights.--The term ``Kansas water rights'' 
        means a property right in the use of water obtained under 
        Kansas law.
            (9) Kickapoo tribe water rights settlement agreement.--The 
        term ``Kickapoo Tribe Water Rights Settlement Agreement'' means 
        the Agreement executed by and between the Tribe and the State 
        of Kansas on September 9, 2016, that is the subject of this 
        approving legislation.
            (10) Member.--The term ``member'' means any person duly 
        enrolled as a member of the Tribe.
            (11) Reservation.--The term ``Reservation''--
                    (A) means the land depicted on the map attached to 
                the Kickapoo Tribe Water Rights Settlement Agreement as 
                Exhibit I; and
                    (B) shall be used solely for the purposes of the 
                Kickapoo Tribe Water Rights Settlement Agreement, this 
                Act, and any judgment or decree issued by the Court 
                approving the Kickapoo Tribe Water Rights Settlement 
                Agreement.
            (12) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (13) State of kansas.--The term ``State of Kansas'' means 
        the Kansas State government and all of its officers, agents, 
        agencies, departments, and divisions.
            (14) Tribal water rights.--The term ``Tribal water rights'' 
        means the water rights ratified, confirmed, and declared to be 
        valid for the benefit of the Tribe and its members and 
        allottees, as set forth and described in section 5.
            (15) Tribe.--The term ``Tribe'' means the Kickapoo Tribe in 
        Kansas, a Federally recognized sovereign Indian Tribe that 
        functions as a customary and traditional Indian Tribe, acting 
        on behalf of itself and its members, but not acting on behalf 
        of members in their capacities as allottees.

SEC. 4. APPROVAL OF THE KICKAPOO TRIBE WATER RIGHTS SETTLEMENT 
              AGREEMENT.

    (a) Ratification of Kickapoo Tribe Water Rights Settlement 
Agreement.--
            (1) In general.--Except as modified by this Act, and to the 
        extent that the Kickapoo Tribe Water Rights Settlement 
        Agreement does not conflict with this Act, the Kickapoo Tribe 
        Water Rights Settlement Agreement is authorized, ratified, and 
        confirmed.
            (2) Amendments.--Any amendment to the Kickapoo Tribe Water 
        Rights Settlement Agreement is authorized, ratified, and 
        confirmed, to the extent that the amendment is executed to make 
        the Kickapoo Tribe Water Rights Settlement Agreement consistent 
        with this Act.
    (b) Execution of Kickapoo Tribe Water Rights Settlement 
Agreement.--
            (1) In general.--To the extent that the Kickapoo Tribe 
        Water Rights Settlement Agreement does not conflict with this 
        Act, the Secretary is directed to and promptly shall execute--
                    (A) the Kickapoo Tribe Water Rights Settlement 
                Agreement (including any exhibit to the Kickapoo Tribe 
                Water Rights Settlement Agreement requiring the 
                signature of the Secretary); and
                    (B) any amendment to the Kickapoo Tribe Water 
                Rights Settlement Agreement necessary to make the 
                Kickapoo Tribe Water Rights Settlement Agreement 
                consistent with this Act.
            (2) Modifications.--Nothing in this Act precludes the 
        Secretary from approving modifications to exhibits to the 
        Kickapoo Tribe Water Rights Settlement Agreement not 
        inconsistent with this Act, to the extent those modifications 
        do not otherwise require congressional approval pursuant to 
        section 2116 of the Revised Statutes (25 U.S.C. 177) or other 
        applicable Federal law.
    (c) Environmental Compliance.--
            (1) In general.--In implementing the Kickapoo Tribe Water 
        Rights Settlement Agreement, to the extent required the 
        Secretary, shall promptly comply with all applicable 
        requirements of--
                    (A) the National Environmental Policy Act of 1969 
                (42 U.S.C. 4321 et seq.);
                    (B) the Endangered Species Act of 1973 (16 U.S.C. 
                1531 et seq.);
                    (C) all other applicable Federal environmental 
                laws; and
                    (D) all regulations promulgated under the laws 
                described in subparagraphs (A) through (C).
            (2) Compliance with federal laws.--
                    (A) Compliance.--The Secretary is directed to carry 
                out all Federal compliance necessary to implement the 
                Kickapoo Tribe Water Rights Settlement Agreement.
                    (B) NEPA.--Execution of the Kickapoo Tribe Water 
                Rights Settlement Agreement 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.).
            (3) Lead agency.--The Bureau of Indian Affairs shall be 
        designated as the lead agency with respect to environmental 
        compliance pursuant to this section.

SEC. 5. KICKAPOO TRIBE WATER RIGHTS.

    (a) Intent of Congress.--It is the intent of Congress to provide to 
each allottee benefits that are equal to or exceed the benefits 
allottees possess as of the date of enactment of this Act, taking into 
consideration--
            (1) the potential risks, cost, and time delay associated 
        with litigation that would be resolved by the Kickapoo Tribe 
        Water Rights Settlement Agreement and this Act;
            (2) the availability of water from the Tribal water rights 
        as set forth in the Kickapoo Tribe Water Rights Settlement 
        Agreement; and
            (3) the applicability of section 7 of the Act of February 
        8, 1887 (25 U.S.C. 381), and this Act to protect the interests 
        of allottees.
    (b) Confirmation of Tribal Water Rights.--
            (1) In general.--A consumptive Tribal water right of up to 
        4,705 acre-feet of water per year is confirmed in accordance 
        with the terms and conditions of the Kickapoo Tribe Water 
        Rights Settlement Agreement.
            (2) Use.--Subject to the terms and conditions of the 
        Kickapoo Tribe Water Rights Settlement Agreement, this Act, and 
        applicable Federal law, the Tribe may use the Tribal water 
        rights for any purpose.
    (c) Holding in Trust.--The Tribal water rights, as set forth in 
subsection (b), shall--
            (1) be held in trust by the United States on behalf of the 
        Tribe and its members and allottees in accordance with this 
        section;
            (2) include the priority date set forth in the Kickapoo 
        Tribe Water Rights Settlement Agreement; and
            (3) not be subject to forfeiture or abandonment.
    (d) Allottees.--
            (1) Applicability of act of february 8, 1887.--The 
        provisions of section 7 of the Act of February 8, 1887 (25 
        U.S.C. 381), relating to the use of water for irrigation 
        purposes shall apply to the Tribal water rights.
            (2) Entitlement to water.--Any entitlement to water for 
        allotted land located within the exterior boundaries of the 
        Reservation under Federal law shall be satisfied from the 
        Tribal water rights.
            (3) Allocations.--Allotted land located within the exterior 
        boundaries of the Reservation shall be entitled to a just and 
        suitable allocation of water for irrigation and domestic 
        purposes from the Tribal water rights.
            (4) Members.--Members who do not own interests in allotted 
        land shall nonetheless be entitled to the use of a portion of 
        the Tribal water rights pursuant to the terms and conditions of 
        the Kickapoo Tribe Water Rights Settlement Agreement and the 
        Tribal Water Code.
            (5) Exhaustion of remedies.--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, 
        a member or allottee shall exhaust remedies available under the 
        Tribal Water Code or other applicable Tribal law.
            (6) Claims.--Following exhaustion of remedies available 
        under the Tribal Water Code or other applicable tribal law, a 
        member or allottee may seek relief under section 7 of the Act 
        of February 8, 1887 (25 U.S.C. 381), or other applicable law.
            (7) Authority.--The Secretary shall have the authority to 
        protect the rights of members or allottees as specified in this 
        section.
    (e) Authority of Tribe.--
            (1) In general.--Except as provided in paragraph (2), the 
        Tribe shall have authority to use, allocate, distribute, and 
        lease the Tribal water rights on or off the Reservation in 
        accordance with--
                    (A) the Kickapoo Tribe Water Rights Settlement 
                Agreement;
                    (B) the Tribal Water Code or other applicable 
                tribal law; and
                    (C) applicable Federal law.
            (2) Leases by allottees.--
                    (A) In general.--An allottee may lease any interest 
                in land held by the allottee, together with any water 
                rights determined to be appurtenant to that interest in 
                land.
                    (B) Water rights appurtenant.--Any water rights 
                determined to be appurtenant to an interest in land 
                leased by an allottee shall be used on or off the 
                Reservation, consistent with the Kickapoo Tribe Water 
                Rights Settlement Agreement.
                    (C) Water rights apportioned.--Water apportioned 
                from the Tribal water rights may be leased off 
                Reservation pursuant to the terms and conditions of the 
                Kickapoo Tribe Water Rights Settlement Agreement.
    (f) Tribal Water Code.--
            (1) In general.--Not later than 3 years 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 Kickapoo Tribe Water Rights Settlement Agreement; 
                and
                    (B) establishment by the Tribe of conditions, 
                permit requirements, and other limitations relating to 
                the diversion, storage, and use of the Tribal water 
                rights in accordance with the Kickapoo Tribe Water 
                Rights Settlement Agreement.
            (2) Inclusions.--The Tribal Water Code shall provide--
                    (A) that allocations of water to members or 
                allottees shall be satisfied with water from the Tribal 
                water rights;
                    (B) that charges for delivery of water for 
                irrigation purposes for allottees shall be assessed in 
                accordance with section 7 of the Act of February 8, 
                1887 (25 U.S.C. 381);
                    (C) the process by which a member or allottee may 
                request that the Tribe provide water for irrigation or 
                domestic purposes in accordance with this Act;
                    (D) a due process system for the consideration and 
                determination by the Tribe of any request by a member 
                or allottee for an allocation of such water for 
                irrigation or domestic 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) a requirement that any member or allottee with 
                a claim relating to the enforcement of rights of the 
                member or 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 member or 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) Action by secretary.--
                    (A) In general.--The Secretary shall administer the 
                Tribal water rights until the Tribal Water Code is 
                enacted and approved under this section.
                    (B) Approval.--Any provision of the Tribal Water 
                Code and any amendment to the Tribal Water Code that 
                affects the rights of members or allottees--
                            (i) shall be subject to the approval of the 
                        Secretary; and
                            (ii) shall not be valid until approved by 
                        the Secretary.
                    (C) Approval period.--The Secretary shall approve 
                or disapprove the Tribal Water Code within a reasonable 
                period of time after the date on which the Tribe 
                submits the Tribal Water Code to the Secretary for 
                approval.
    (g) Effect.--Except as otherwise specifically provided in this 
section, nothing in this Act--
            (1) authorizes any action by a member or allottee (or any 
        successor in interest to 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.

SEC. 6. EFFECT OF KICKAPOO TRIBE WATER RIGHTS SETTLEMENT AGREEMENT AND 
              ACT.

    (a) Administration of Kansas Water Rights.--The State of Kansas 
shall administer all Kansas water rights in the Delaware River Basin in 
conformity with Article 7 of the Kickapoo Tribe Water Rights Settlement 
Agreement, the Memorandum of Agreement and other exhibits referenced 
therein and attached thereto, and this Act.
    (b) Effect of Kickapoo Tribe Water Rights Settlement Agreement and 
Act.--Nothing in the Kickapoo Tribe Water Rights Settlement Agreement 
or this Act--
            (1) affects the ability of the United States, acting as 
        sovereign, to take actions authorized by law, including any 
        laws relating to health, safety, or the environment, 
        including--
                    (A) the Comprehensive Environmental Response, 
                Compensation, and Liability Act of 1980 (42 U.S.C. 9601 
                et seq.);
                    (B) the Safe Drinking Water Act (42 U.S.C. 300f et 
                seq.);
                    (C) the Federal Water Pollution Control Act (33 
                U.S.C. 1251 et seq.); and
                    (D) any regulations implementing the Acts described 
                in subparagraphs (A) through (C);
            (2) affects the ability of the United States to take 
        actions acting as trustee for any other Indian Tribe or a 
        member or allottee of any other Indian Tribe;
            (3) confers jurisdiction on any State court--
                    (A) to interpret Federal law regarding health, 
                safety, or the environment;
                    (B) to determine the duties of the United States or 
                other parties pursuant to Federal law regarding health, 
                safety, or the environment; and
                    (C) to conduct judicial review of Federal agency 
                action;
            (4) waives any claim of a member of the Tribe in an 
        individual capacity that does not derive from a right of the 
        Tribe; or
            (5) affects the requirement of any party to the Kickapoo 
        Tribe Water Rights Settlement Agreement or any of the exhibits 
        to the Kickapoo Tribe Water Rights Settlement Agreement to 
        comply with the National Environmental Policy Act of 1969 (42 
        U.S.C. 4321 et seq.) prior to performing the respective 
        obligations of that party under the Kickapoo Tribe Water Rights 
        Settlement Agreement.
    (c) Enforceability Date.--The enforceability date shall be the date 
on which the Secretary publishes in the Federal Register a statement of 
findings that the Court has approved and entered a judgment and decree 
approving the Kickapoo Tribe Water Rights Settlement Agreement.

SEC. 7. WATER FACILITIES.

    The Secretary of Agriculture, as delegated to the Director of the 
Natural Resources Conservation Service, in consultation with the 
Secretary as delegated to the Secretary's Indian Water Rights Office, 
is hereby directed--
            (1) to commence a study of the Upper Delaware and 
        Tributaries Watershed project, as authorized by the Committee 
        on Environment and Public Works of the Senate (Senate Report 
        105-13; April 22, 1997); and
            (2) not later than 2 years after the date of enactment of 
        this Act, make recommendations to Congress with respect to 
        material alterations or changes in the Plan necessary to 
        effectuate, in part, the Tribal water rights approved, 
        ratified, and confirmed by the Kickapoo Tribe Water Rights 
        Settlement Agreement and this Act.

SEC. 8. WAIVER AND RELEASE OF CLAIMS; RETENTION OF CLAIMS.

    As described in Article 12 of the Kickapoo Tribe Water Rights 
Settlement Agreement--
            (1) upon the enactment of this Act, the Tribe and the 
        United States agree to waive claims to water rights in the 
        Delaware River Basin; and
            (2) nothing in this Act resolves or waives any claims for 
        damages or losses by the Tribe against the United States, for 
        injuries to water rights or claims of interference with, 
        diversion, or taking of water (including claims for injury to 
        lands resulting from such damages, losses, injuries, 
        interference with, diversion, or taking) in the Delaware River 
        Basin for failure to establish, quantify, acquire, develop, 
        enforce, or protect such water rights.

SEC. 9. JUDICIAL PROCEEDINGS.

    Upon the date of enactment of this Act, the judicial proceedings 
described in Articles 10 and 11 of the Kickapoo Tribe Water Rights 
Settlement Agreement shall be and are hereby authorized to be 
commenced.

SEC. 10. MISCELLANEOUS PROVISIONS.

    (a) Waiver of Sovereign Immunity by the United States.--Except as 
provided in subsections (a) through (c) of section 208 of the 
Department of Justice Appropriation Act, 1953 (43 U.S.C. 666) and the 
Kickapoo Tribe Water Rights Settlement Agreement, nothing in this Act 
waives the sovereign immunity of the United States.
    (b) Other Tribes Not Adversely Affected.--Nothing in this Act 
quantifies or diminishes any land or water rights, 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 Reimbursement.--With respect to Indian 
land within the Reservation--
            (1) the United States shall not submit against any Indian-
        owned land located within the Reservation any claim for 
        reimbursement of the cost to the United States of carrying out 
        this Act and the Kickapoo Tribe Water Rights Settlement 
        Agreement; and
            (2) no assessment of any Indian-owned land located within 
        the Reservation shall be made regarding that cost.
    (d) Effect on Current Law.--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 pre-enforcement 
review of any Federal environmental enforcement action.
    (e) No Use of Condemnation or Eminent Domain.--Land or interests in 
land may not be acquired by condemnation or eminent domain under this 
Act or for the purposes of this Act.
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