[Congressional Record Volume 142, Number 135 (Thursday, September 26, 1996)]
[Senate]
[Pages S11462-S11468]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               SETTLEMENT OF THE NAVAJO-HOPI LAND DISPUTE

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of calendar No. 582, S. 1973.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       A bill (S. 1973) to provide for the settlement of the 
     Navajo-Hopi land dispute, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the 
bill which had been reported from the Committee on Indian Affairs, with 
an amendment to strike all after the enacting clause and inserting in 
lieu thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Navajo-Hopi Land Dispute 
     Settlement Act of 1996''.

     SEC. 2. FINDINGS.

       The Congress finds that--
       (1) it is in the public interest for the Tribe, Navajos 
     residing on the Hopi Partitioned Lands, and the United States 
     to reach a peaceful resolution of the longstanding 
     disagreements between the parties under the Act commonly 
     known as the ``Navajo-Hopi Land Settlement Act of 1974'' 
     (Public Law 93-531; 25 U.S.C. 640d et seq.);

[[Page S11463]]

       (2) it is in the best interest of the Tribe and the United 
     States that there be a fair and final settlement of certain 
     issues remaining in connection with the Navajo-Hopi Land 
     Settlement Act of 1974, including the full and final 
     settlement of the multiple claims that the Tribe has against 
     the United States;
       (3) this Act, together with the Settlement Agreement 
     executed on December 14, 1995, and the Accommodation 
     Agreement (as incorporated by the Settlement Agreement), 
     provide the authority for the Tribe to enter agreements with 
     eligible Navajo families in order for those families to 
     remain residents of the Hopi Partitioned Lands for a period 
     of 75 years, subject to the terms and conditions of the 
     Accommodation Agreement;
       (4) the United States acknowledges and respects--
       (A) the sincerity of the traditional beliefs of the members 
     of the Tribe and the Navajo families residing on the Hopi 
     Partitioned Lands; and
       (B) the importance that the respective traditional beliefs 
     of the members of the Tribe and Navajo families have with 
     respect to the culture and way of life of those members and 
     families;
       (5) this Act, the Settlement Agreement, and the 
     Accommodation Agreement provide for the mutual respect and 
     protection of the traditional religious beliefs and practices 
     of the Tribe and the Navajo families residing on the Hopi 
     Partitioned Lands; and
       (6) the Tribe is encouraged to work with the Navajo 
     families residing on the Hopi Partitioned Lands to address 
     their concerns regarding the establishment of family or 
     individual burial plots for deceased family members who have 
     resided on the Hopi Partitioned Lands.

     SEC. 3. DEFINITIONS.

       Except as otherwise provided in this Act, for purposes of 
     this Act, the following definitions shall apply:
       (1) Accommodation.--The term ``Accommodation'' has the 
     meaning provided that term under the Settlement Agreement.
       (2) Hopi partitioned lands.--The term ``Hopi Partitioned 
     Lands'' means lands located in the Hopi Partitioned Area, as 
     defined in section 168.1(g) of title 25, Code of Federal 
     Regulations (as in effect on the date of enactment of this 
     Act).
       (3) Navajo partitioned lands.--The term ``Navajo 
     Partitioned Lands'' has the meaning provided that term in the 
     proposed regulations issued on November 1, 1995, at 60 Fed. 
     Reg. 55506.
       (4) New lands.--The term ``New Lands'' has the meaning 
     provided that term in section 700.701(b) of title 25, Code of 
     Federal Regulations.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (6) Settlement agreement.--The term ``Settlement 
     Agreement'' means the agreement between the United States and 
     the Hopi Tribe executed on December 14, 1995.
       (7) Tribe.--The term ``Tribe'' means the Hopi Tribe.

     SEC. 4. RATIFICATION OF SETTLEMENT AGREEMENT.

       The United States approves, ratifies, and confirms the 
     Settlement Agreement.

     SEC. 5. CONDITIONS FOR LANDS TAKEN INTO TRUST.

       The Secretary shall take such action as may be necessary to 
     ensure that the following conditions are met prior to taking 
     lands into trust for the benefit of the Tribe pursuant to the 
     Settlement Agreement:
       (1) Selection of lands taken into trust.--
       (A) Primary area.--In accordance with section 7(a) of the 
     Settlement Agreement, the primary area within which lands 
     acquired by the Tribe may be taken into trust by the 
     Secretary for the benefit of the Tribe under the Settlement 
     Agreement shall be located in northern Arizona.
       (B) Requirements for lands taken into trust in the primary 
     area.--Lands taken into trust in the primary area referred to 
     in subparagraph (A) shall be--
       (i) land that is used substantially for ranching, 
     agriculture, or another similar use; and
       (ii) to the extent feasible, in contiguous parcels.
       (2) Acquisition of lands.--Before taking any land into 
     trust for the benefit of the Tribe under this section, the 
     Secretary shall ensure that--
       (A) at least 85 percent of the eligible Navajo heads of 
     household (as determined under the Settlement Agreement) have 
     entered into an accommodation or have chosen to relocate and 
     are eligible for relocation assistance (as determined under 
     the Settlement Agreement); and
       (B) the Tribe has consulted with the State of Arizona 
     concerning the lands proposed to be placed in trust, 
     including consulting with the State concerning the impact of 
     placing those lands into trust on the State and political 
     subdivisions thereof resulting from the removal of land from 
     the tax rolls in a manner consistent with the provisions of 
     part 151 of title 25, Code of Federal Regulations.
       (3) Prohibition.--The Secretary may not, pursuant to the 
     provisions of this Act and the Settlement Agreement, place 
     lands, any portion of which are located within or contiguous 
     to a 5-mile radius of an incorporated town (as that term is 
     defined by the Secretary) in northern Arizona, into trust for 
     benefit of the Tribe without specific statutory authority.

     SEC. 6. ACQUISITION THROUGH CONDEMNATION OF CERTAIN 
                   INTERSPERSED LANDS.

       (a) In General.--
       (1) Action by the secretary.--
       (A) In general.--The Secretary shall take action as 
     specified in subparagraph (B), to the extent that the Tribe, 
     in accordance with section 7(b) of the Settlement Agreement--
       (i) acquires private lands; and
       (ii) requests the Secretary to acquire through condemnation 
     interspersed lands that are owned by the State of Arizona and 
     are located within the exterior boundaries of those private 
     lands in order to have both the private lands and the State 
     lands taken into trust by the Secretary for the benefit of 
     the Tribe.
       (B) Acquisition through condemnation.--With respect to a 
     request for an acquisition of lands through condemnation made 
     under subparagraph (A), the Secretary shall, upon the 
     recommendation of the Tribe, take such action as may be 
     necessary to acquire the lands through condemnation and, with 
     funds provided by the Tribe, pay the State of Arizona fair 
     market value for those lands in accordance with applicable 
     Federal law, if the conditions described in paragraph (2) are 
     met.
       (2) Conditions for acquisition through condemnation.--The 
     Secretary may acquire lands through condemnation under this 
     subsection if--
       (A) that acquisition is consistent with the purpose of 
     obtaining not more than 500,000 acres of land to be taken 
     into trust for the Tribe;
       (B) the State of Arizona concurs with the United States 
     that the acquisition is consistent with the interests of the 
     State; and
       (C) the Tribe pays for the land acquired through 
     condemnation under this subsection.
       (b) Disposition of Lands.--If the Secretary acquires lands 
     through condemnation under subsection (a), the Secretary 
     shall take those lands into trust for the Tribe in accordance 
     with this Act and the Settlement Agreement.
       (c) Private Lands.--The Secretary may not acquire private 
     lands through condemnation for the purpose specified in 
     subsection (a)(2)(A).

     SEC. 7. ACTION TO QUIET POSSESSION.

       If the United States fails to discharge the obligations 
     specified in section 9(c) of the Settlement Agreement with 
     respect to voluntary relocation of Navajos residing on Hopi 
     Partitioned Lands, or section 9(d) of the Settlement 
     Agreement, relating to the implementation of sections 700.137 
     through 700.139 of title 25, Code of Federal Regulations, on 
     the New Lands, including failure for reason of insufficient 
     funds made available by appropriations or otherwise, the 
     Tribe may bring an action to quiet possession that relates to 
     the use of the Hopi Partitioned Lands after February 1, 2000, 
     by a Navajo family that is eligible for an accommodation, but 
     fails to enter into an accommodation.

     SEC. 8. PAYMENT TO STATE OF ARIZONA.

       (a) Authorization of Appropriations.--Subject to subsection 
     (b), there are authorized to be appropriated to the 
     Department of the Interior $250,000 for fiscal year 1998, to 
     be used by the Secretary of the Interior for making a payment 
     to the State of Arizona.
       (b) Payment.--The Secretary shall make a payment in the 
     amount specified in subsection (a) to the State of Arizona 
     after an initial acquisition of land from the State has been 
     made by the Secretary pursuant to section 6.

     SEC. 9. 75-YEAR LEASING AUTHORITY.

       The first section of the Act of August 9, 1955 (69 Stat. 
     539, chapter 615; 25 U.S.C. 415) is amended by adding at the 
     end the following new subsections:
       ``(c) Leases Involving the Hopi Tribe and the Hopi 
     Partitioned Lands Accommodation Agreement.--Notwithstanding 
     subsection (a), a lease of land by the Hopi Tribe to Navajo 
     Indians on the Hopi Partitioned Lands may be for a term of 75 
     years, and may be extended at the conclusion of the term of 
     the lease.
       ``(d) Definitions.--For purposes of this section--
       ``(1) the term `Hopi Partitioned Lands' means lands located 
     in the Hopi Partitioned Area, as defined in section 168.1(g) 
     of title 25, Code of Federal Regulations (as in effect on the 
     date of enactment of this subsection); and
       ``(2) the term `Navajo Indians' means members of the Navajo 
     Tribe.''.

     SEC. 10. REAUTHORIZATION OF THE NAVAJO-HOPI RELOCATION 
                   HOUSING PROGRAM.

       Section 25(a)(8) of Public Law 93-531 (25 U.S.C. 640d-
     24(a)(8)) is amended by striking ``1996, and 1997'' and 
     inserting ``1996, 1997, 1998, 1999, and 2000''.

  Mr. KYL. Mr. President, at this point, I ask the distinguished 
Chairman of the Committee on Indian Affairs, the senior Senator from 
Arizona, Senator McCain, to engage in a colloquy.
  Mr. McCAIN. Mr. President, I would be glad to engage Senator Kyl for 
purposes of a colloquy.
  Mr. KYL. As you know, the general authority of the Secretary to take 
land in trust was struck down as unconstitutional by the U.S. Court of 
Appeals for the Eighth Circuit in the case of United States Department 
of the Interior, et al. versus State of South Dakota and City of 
Oacoma. Does the authority for the Secretary to take newly acquired 
lands in trust pursuant to the settlement agreement and this act rely 
on that general authority?
  Mr. McCAIN. No. The authority for the Secretary of the Interior to 
take newly acquired lands in trust for the Hopi Tribe pursuant to the 
settlement agreement is granted solely pursuant to this act.
  Mr. KYL. What is the Chairman's understanding of the process that the 
Secretary will use to consider requests to take newly acquired lands in 
trust for the Hopi Tribe pursuant to the settlement agreement and this 
act?
  Mr. McCAIN. The settlement agreement provides that the Secretary will

[[Page S11464]]

consider the Tribe's request for trust status for any lands it 
acquires, subject to all existing applicable laws and regulations, 
including the National Environmental Policy Act and 25 Code of Federal 
Regulations 151, and provided that any environmental problems 
identified as a result of compliance with the National Environmental 
Policy Act are mitigated to the satisfaction of the Secretary.
  Mr. KYL. Does this act establish a Federal reserved right to the use 
of groundwater on the newly acquired trust lands?
  Mr. McCAIN. No. Language in the act is explicit that nothing in the 
act establishes a Federal reserved right to groundwater. The act sets 
forth the attributes of the Hopi water rights on the newly acquired 
lands and provides how conflicts that may arise shall be resolved.
  Mr. KYL. Does the Senator agree that the water rights granted by this 
act to the Hopi Tribe on newly acquired trust lands are not Federal 
reserved water rights, but instead are Federal statutory rights granted 
solely by this legislation as part of a unique settlement tailored to 
the unique circumstances surrounding the Navajo-Hopi land dispute?
  Mr. McCAIN. I agree with the Senator. The legislation makes clear 
that water rights on newly acquired trust land that are specifically 
granted by this act are Federal water rights granted by Congress. They 
are Federal statutory water rights, not Federal reserved water rights.
  Mr. KYL. Does the Senator agree that, as a matter of longstanding 
Congressional policy, Congress recognizes the principle that State 
water law governs the allocation and use of water within a State, 
subject to the Federal Government's power to reserve and establish 
water rights for the purposes associated with Federal lands and Indian 
reservations?
  Mr. McCAIN. I agree.
  Mr. KYL. Does the Senator agree that the fact that Congress sees fit 
to grant these water rights in this act reflects the circumstances 
unique to the Navajo-Hopi dispute, and does not reflect any intention 
by the Congress to depart from its general policy with respect to the 
primacy of State water law?
  Mr. McCAIN. I agree with the Senator.
  Mr. KYL. Mr. President, the Navajo-Hopi Land Dispute Settlement Act, 
S. 1973, represents the culmination of several years' worth of very 
difficult negotiations involving the Navajo and Hopi Tribes, Navajo 
families residing on Hopi Partitioned Lands, the U.S. Departments of 
Interior and Justice, the State of Arizona, and representatives of the 
tribes' non-Indian neighbors in Arizona.
  The bill, and the settlement agreement that it ratifies, are the 
result of good faith efforts by all parties. Taken together, they may 
well represent the last, best chance to resolve this land dispute with 
a minimum of pain and disruption to members of the Indian tribes.
  Still, this is not a perfect agreement, and I must say for the record 
that I am not entirely convinced that it will fully resolve the land 
dispute. The very basis of the settlement is the 75-year leases that 
the Hopi Tribe will offer to Navajo families who still reside on the 
HPL and who wish to remain there. By its own design, the settlement 
carries with it the prospect that the dispute will arise again in 75 
years when those leases expire.
  The question is, what will happen if the Hopi Tribe does not extend 
the leases in 75 years, and our successors find that the problem not 
only remains, but that the number of Navajos in the area has increased 
significantly? Will the United States be asked to commit hundreds of 
millions more taxpayer dollars to another painful relocation program? 
Even though the Hopi indicate now that, if the United States fulfills 
its obligations under the settlement, it will have fulfilled all of its 
obligations to the tribe in this matter, what will the obligations of 
the United States really be 75 years from now--when individuals yet 
unborn have assumed leadership of the tribes, the Congress, the 
administration, and the State and local governments?
  I caution anyone to be under no illusion that we are permanently 
settling the land dispute. I suspect that Congress will be asked to 
find some other way to resolve it--maybe even sooner than 75 years from 
now. Nevertheless, I am willing to allow this agreement to go forward, 
in large part because the Hopi Chairman, Ferrell Secakuku, has given me 
his word that the agreement is in the best interest of the Hopi people 
and that the tribe will do its best to accommodate Navajo families who 
wish to remain on the HPL.
  I am also willing to allow it to go forward because changes made 
during the course of the Senate's consideration have made it at least 
somewhat more likely that the settlement will succeed. For example, we 
have made parts of the agreement contingent upon 85 percent of the 
Navajo families signing the lease agreements or accepting relocation 
benefits. That will ensure some degree of finality before the benefits 
of resolution--namely, the granting of trust status to lands acquired 
by the Hopi--are awarded. It will also ensure that a significant 
majority of the Navajo families are willing participants in the 
arrangement--something that will improve the prospects of long-term 
success.

  We have also included language to minimize the effect on the tribe's 
non-Indian neighbors. For example, we say that the taking in trust of 
any lands, any portion of which falls within a 5-mile radius of an 
incorporated city or town, will require the specific approval of 
Congress. We authorize the capitalization of a fund to compensate local 
governments for any loss of tax revenues resulting from the taking of 
lands in trust. We codify the understandings in the agreement about the 
location and character of lands that can be taken in trust, and codify 
the rights of the State of Arizona with regard to State lands that the 
Hopi may acquire.
  Mr. President, the bill includes important language regarding rights 
to water on any newly acquired trust lands, and of course, water is the 
most critical issue for others in Arizona who may be affected by the 
settlement. In fact, it was the issue of water rights that has proven 
to be one of the most difficult to resolve.
  Initially, the agreement and the bill were silent on the issue, 
suggesting that Congress might have been creating a new unquantified 
Federal reserved water right in this legislation. It is my view that 
such a right is not implicit in the taking of land in trust; any water 
rights that exist, exist only as Congress specifically provides in 
statute.
  With that in mind, language in the bill clearly spells out what water 
rights will exist on the newly acquired trust lands. Although the 
language is not as I would have written it, it is largely acceptable to 
water users in Arizona who are most likely be affected by the 
implementation of the settlement, with the exception of the city of 
Flagstaff.
  In that regard, Chairman Ferrell Secakuku of the Hopi Tribe sent a 
letter dated September 23, 1996, to Mayor Bavasi of Flagstaff, pledging 
that it is not the intent of the Hopi Tribe, as part of the settlement 
of the land dispute, to affect adversely the city's water use.
  I ask unanimous consent that the chairman's letter and a copy of a 
letter clarifying the city's understanding of the tribe's position be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               The Hopi Tribe,

                                               September 23, 1996.
     Hon. Christopher Bavasi,
     City of Flagstaff,
     Flagstaff, AZ.
       Dear Chris: I am writing in response to conversations Lee 
     Storey has had with Scott Canty and Tim Atkeson regarding the 
     City of Flagstaff and the Lake Mary water drainage. It is my 
     understanding that the City of Flagstaff has an interest in 
     the unappropriated surface water in the Lake Mary water 
     drainage and is concerned that the Hopi Tribe may assert a 
     federal claim to that water. It is not the intent of the Hopi 
     Tribe, as part of the settlement of the land dispute, to 
     affect adversely the City's interest in that water. 
     Accordingly, I would invite you and the City Council to meet 
     with me and the Hopi Tribe over the next few weeks to develop 
     a mechanism whereby the City's interests can be accommodated. 
     Please let me know your schedule so that we can resolve this 
     issue satisfactorily.
           Sincerely,
                                                 Ferrell Secakuku,
     Chairman of the Hopi Tribe.
                                       ____


[[Page S11465]]




                                            City of Flagstaff,

                                               September 24, 1996.
     Hon. Jon Kyl,
     Hon. John McCain,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kyl and Senator McCain: The Flagstaff City 
     Council met at 12:30 p.m. today to consider its position on 
     Senate Bill 1973, taking into consideration the letter 
     received by Major Chris Bavasi from Hopi Chairman Ferrell 
     Secakuku. Based on assurance made by Chairman Secakuku's 
     letter, the City Council instructed me to convey its support 
     for SB 1973. It is important to note that a message received 
     from Tim Atkeson, Legal Counsel for the Hopi Tribe, through 
     Lee Storey, was vital to the Council's decision. Mr. Atkeson 
     confirmed by phone with Lee Storey that Chairman Secakuku's 
     letter is intended to cover all of Flagstaff's water use, and 
     not be limited to the Lake Mary watershed.
       The Council also relied heavily on your intention to 
     comment during Senate consideration that passage is supported 
     with the understanding that the Hopi Tribe will work with the 
     City of Flagstaff to formalize a legal and binding instrument 
     to implement their commitment not to adversely affect the 
     City's water rights/water supply.
       The Council also understands that you will commit to join 
     with the City of Flagstaff and the Hopi Tribe to secure the 
     appropriate legal instrument between the two.
       Thank you very much for your consideration.
           Sincerely,
                                                  David W. Wilcox,
                                                     City manager.

  Mr. KYL. The chairman pledged in his letter to meet with Mayor Bavasi 
within the next few weeks to develop a mechanism whereby the city's 
interests can be accommodated, and I take the chairman at his word that 
the tribe will not adversely affect the city's interest. It is based on 
the chairman's assurances that I am not seeking additional language in 
the bill at this time.
  I am sending letters to both the chairman and the mayor encouraging 
them to meet expeditiously on the matter and come to resolution, and I 
will look forward to early progress reports from them.
  Mr. President, let me address for a moment specific language in the 
bill. Subsection 12(a)(1)(A) permits the reasonable use of groundwater 
pumped on newly acquired trust lands; provisions in section 12(h) of 
the bill make it clear, however, that this should not be construed as 
establishing a Federal reserved right to ground water.
  Another provision allows the Hopi to maintain all rights to the use 
of surface water on such lands that exist under State law on the date 
of acquisition, and it allows the tribe to make any further beneficial 
use, on newly acquired trust lands, of surface water which is 
unappropriated on the date that each parcel of newly acquired trust 
lands is taken into trust.
  These rights are constrained. With respect to ground water, the bill 
requires the tribe to recognize as valid all uses of ground water which 
may be made from wells, or their subsequent replacements, in existence 
on the date each parcel of newly acquired trust land is acquired. The 
tribe shall not object to such ground water uses on the basis of water 
rights associated with the newly acquired trust lands. The tribe agrees 
to limit any objection only to the impact on newly acquired trust lands 
of ground water uses which are initiated after the date the lands 
affected are taken in trust, and only on grounds allowed by State law 
as it exists when the objection is made.
  Let me say that again--objection can be made only on grounds allowed 
by State law when the objection is made.
  The tribe further agrees not to object to ground water uses that 
affect the tribe's right to surface water established under subsection 
12(a)(1)(C) when those ground water uses are initiated before the tribe 
initiates its beneficial use of surface water pursuant to that 
subsection.
  The tribe further agrees to recognize as valid all uses of surface 
water in existence on or prior to the date each parcel of newly 
acquired trust land is acquired, and shall not object to such surface-
water uses on the basis of water rights associated with the newly 
acquired trust lands. The tribe may enforce the priority of its rights 
to surface water against junior surface water rights, but only to the 
extent that the exercise of those junior rights interferes with the 
actual use of the tribe's senior surface water rights.
  Mr. President, the creation of the limited right to the beneficial 
use of unappropriated surface water that is created here--and I 
emphasize the language included in section 12(h) that says explicitly 
that such a right is not a Federal reserved water right--can interfere 
with the rights of others who lawfully put water to beneficial use in 
the State after the passage of this bill, and that is the problem.
  The tribe could, for example, assert a senior right to such 
unappropriated surface water many years from now, having never put the 
water to beneficial use, while others, including cities and towns in 
northern Arizona, and private parties, have floated bonds, made 
investments, and made other economic development plans based on water 
that is available in the interim and lawfully put to beneficial use.
  Moreover, the creation of even a limited right to water for new lands 
acquired by the Hopi could undermine the entire Little Colorado River 
adjudication should the tribe assert the right many years in the 
future, after the adjudication process has been completed.
  The fact is, there is no need to create any additional water right, 
even the limited right that is included here. The settlement allows the 
Hopi to choose any land the tribe wishes, including land with very 
secure and senior water rights. Those rights may well be senior to the 
bill's limited right, with its priority date that the lands are taken 
in trust.
  The tribe can choose to buy land with very good State-law water 
rights, or none at all. It should not, however, be allowed to secure 
existing State-law rights and even a limited right to some additional 
amount of water.
  Nevertheless, I am willing to allow the legislation to go forward 
first, because, according to the Arizona Department of Water Resources, 
the amount of unappropriated water in this instance is negligible; 
second, because the Hopi Tribe has agreed to try to accommodate the 
city of Flagstaff's further concerns; third, because the right is 
carefully defined and limited by section 12(b); and fourth, because 
language in section 12(h) makes it explicit that nothing in this 
legislation shall imply that a Federal reserved water right is created 
or that State law shall not apply.


            Amendment Nos. 5407, 5408, 5409, 5410, and 5411

  Mr. LOTT. Mr. President, I understand that Senator McCain has five 
amendments at the desk as follows: Amendment No. 5407, regarding trust 
lands; amendment No. 5408, a technical change; amendment No. 5409, an 
additional finding; amendment No. 5410 relating to expeditious action; 
amendment No. 5411, statutory interpretation and water rights.
  The amendments (Nos. 5407, 5408, 5409, 5410, and 5411) are as 
follows:


                           amendment no. 5407

    (Purpose: To provide a definition of newly acquired trust lands)

       On page 13, between lines 20 and 21, insert the following:
       (8) Newly acquired trust lands.--The term ``newly acquired 
     trust lands'' means lands taken into trust for the Tribe 
     within the State of Arizona pursuant to this Act or the 
     Settlement Agreement.
                                                                    ____



                           amendment no. 5408

                (Purpose: To provide a technical change)

       On page 15, line 18, strike ``town (as that term is'' and 
     insert ``town or city (as those terms are''.
                                                                    ____



                           amendment no. 5409

              (Purpose: To provide an additional finding)

       On page 12, line 12, strike ``and''.
       On page 12, line 18, strike the period and insert ``; 
     and''.
       On page 12, between lines 18 and 19, insert the following:
       (7) neither the Navajo Nation nor the Navajo families 
     residing upon Hopi Partitioned Lands were parties to or 
     signers of the Settlement Agreement between the United States 
     and the Hopi Tribe.
                                                                    ____



                           amendment no. 5410

   (Purpose: To direct the Secretary to take lands into trust in an 
                          expeditious manner)

       On page 15, between lines 20 and 21, insert the following:
       (4) Expeditious action by the secretary.--Consistent with 
     all other provisions of this Act, the Secretary is directed 
     to take lands into trust under this Act expeditiously and 
     without undue delay.
                                                                    ____



                           amendment no. 5411

  (Purpose: To provide for statutory interpretation and water rights)

       On page 19, after line 15, add the following:

     SEC. 11. EFFECT OF THIS ACT ON CASES INVOLVING THE NAVAJO 
                   NATION AND THE HOPI TRIBE.

       Nothing in this Act or the amendments made by this Act 
     shall be interpreted or

[[Page S11466]]

     deemed to preclude, limit, or endorse, in any manner, actions 
     by the Navajo Nation that seek, in court, an offset from 
     judgments for payments received by the Hopi Tribe under the 
     Settlement Agreement.

     SEC. 12. WATER RIGHTS.

       (a) In General.--
       (1) Water rights.--Subject to the other provisions of this 
     section, newly acquired trust lands shall have only the 
     following water rights:
       (A) The right to the reasonable use of groundwater pumped 
     from such lands.
       (B) All rights to the use of surface water on such lands 
     existing under State law on the date of acquisition, with the 
     priority date of such right under State law.
       (C) The right to make any further beneficial use on such 
     lands which is unappropriated on the date each parcel of 
     newly acquired trust lands is taken into trust. The priority 
     date for the right shall be the date the lands are taken into 
     trust.
       (2) Rights not subject to forfeiture or abandonment.--The 
     Tribe's water rights for newly acquired trust lands shall not 
     be subject to forfeiture or abandonment arising from events 
     occurring after the date the lands are taken into trust.
       (b) Recognition as Valid Uses.--
       (1) Groundwater.--With respect to water rights associated 
     with newly acquired trust lands, the Tribe, and the United 
     States on the Tribe's behalf, shall recognize as valid all 
     uses of groundwater which may be made from wells (or their 
     subsequent replacements) in existence on the date each parcel 
     of newly acquired trust land is acquired and shall not object 
     to such groundwater uses on the basis of water rights 
     associated with the newly acquired trust lands. The Tribe, 
     and the United States on the Tribe's behalf, may object only 
     to the impact of groundwater uses on newly acquired trust 
     lands which are initiated after the date the lands affected 
     are taken into trust and only on grounds allowed by the State 
     law as it exists when the objection is made. The Tribe, and 
     the United States on the Tribe's behalf, shall not object to 
     the impact of groundwater uses on the Tribe's right to 
     surface water established pursuant to subsection (a)(3) when 
     those groundwater uses are initiated before the Tribe 
     initiates its beneficial use of surface water pursuant to 
     subsection (a)(3).
       (2) Surface water.--With respect to water rights associated 
     with newly acquired trust lands, the Tribe, and the United 
     States on the Tribe's behalf, shall recognize as valid all 
     uses of surface water in existence on or prior to the date 
     each parcel of newly acquired trust land is acquired and 
     shall not object to such surface water uses on the basis of 
     water rights associated with the newly acquired trust lands, 
     but shall have the right to enforce the priority of its 
     rights against all junior water rights the exercise of which 
     interfere with the actual use of the Tribe's senior surface 
     water rights.
       (3) Rule of construction.--Nothing in paragraph (1) or (2) 
     shall preclude the Tribe, or the United States on the Tribe's 
     behalf, from asserting objections to water rights and uses on 
     the basis of the Tribe's water rights on its currently 
     existing trust lands.
       (c) Applicability of State Law on Lands Other Than Newly 
     Acquired Lands.--The Tribe, and the United States on the 
     Tribe's behalf, further recognize that State law applies to 
     water uses on lands, including subsurface estates, that exist 
     within the exterior boundaries of newly acquired trust lands 
     and that are owned by any party other than the Tribe.
       (d) Adjudication of Water Rights on Newly Acquired Trust 
     Lands.--The Tribe's water rights on newly acquired trust 
     lands shall be adjudicated with the rights of all other 
     competing users in the court now presiding over the Little 
     Colorado River Adjudication, or if that court no longer has 
     jurisdiction, in the appropriate State or Federal court. Any 
     controversies between or among users arising under Federal or 
     State law involving the Tribe's water rights on newly 
     acquired trust lands shall be resolved in the court now 
     presiding over the Little Colorado River Adjudication, or, if 
     that court no longer has jurisdiction, in the appropriate 
     State or Federal court. Nothing in this subsection shall be 
     construed to affect any court's jurisdiction; provided, that 
     the Tribe shall administer all water rights established in 
     subsection (a).
       (e) Prohibition.--Water rights for newly acquired trust 
     lands shall not be used, leased, sold, or transported for use 
     off of such lands or the Tribe's other trust lands, provided 
     that the Tribe may agree with other persons having junior 
     water rights to subordinate the Tribe's senior water rights. 
     Water rights for newly acquired trust lands can only be used 
     on those lands or other trust lands of the Tribe located 
     within the same river basin tributary to the main stream of 
     the Colorado River.
       (f) Subsurface Interests.--On any newly acquired trust 
     lands where the subsurface interest is owned by any party 
     other than the Tribe, the trust status of the surface 
     ownership shall not impair any existing right of the 
     subsurface owner to develop the subsurface interest and to 
     have access to the surface for the purpose of such 
     development.
       (g) Statutory Construction with Respect to Water Rights of 
     Other Federally Recognized Indian Tribes.--Nothing in this 
     section shall affect the water rights of any other federally 
     recognized Indian tribe with a priority date earlier than the 
     date the newly acquired trust lands are taken into trust.
       (h) Statutory Construction.--Nothing in this section shall 
     be construed to determine the law applicable to water use on 
     lands owned by the United States, other than on the newly 
     acquired trust lands. The granting of the right to make 
     beneficial use of unappropriated surface water on the newly 
     acquired trust lands with a priority date such lands are 
     taken into trust shall not be construed to imply that such 
     right is a Federal reserved water right. Nothing in this 
     section or any other provision of this Act shall be construed 
     to establish any Federal reserved right to groundwater. 
     Authority for the Secretary to take land into trust for the 
     Tribe pursuant to the Settlement Agreement and this Act shall 
     be construed as having been provided solely by the provisions 
     of this Act.

  Mr. LOTT. Mr. President, I ask unanimous consent that the amendments 
be agreed to, en bloc, and the committee amendment, as amended, be 
agreed to, the bill be deemed read a third time and passed, as amended, 
the motion to reconsider be laid on the table, and that any statements 
relating to the bill be printed at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments (Nos. 5407, 5408, 5409, 5410, and 5411) were agreed 
to.
  The committee amendment, as amended, was agreed to.
  The bill (S. 1973), as amended, was agreed to, as follows:

                                S. 1973

       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 ``Navajo-Hopi Land Dispute 
     Settlement Act of 1996''.

     SEC. 2. FINDINGS.

       The Congress finds that--
       (1) it is in the public interest for the Tribe, Navajos 
     residing on the Hopi Partitioned Lands, and the United States 
     to reach a peaceful resolution of the longstanding 
     disagreements between the parties under the Act commonly 
     known as the ``Navajo-Hopi Land Settlement Act of 1974'' 
     (Public Law 93-531; 25 U.S.C. 640d et seq.);
       (2) it is in the best interest of the Tribe and the United 
     States that there be a fair and final settlement of certain 
     issues remaining in connection with the Navajo-Hopi Land 
     Settlement Act of 1974, including the full and final 
     settlement of the multiple claims that the Tribe has against 
     the United States;
       (3) this Act, together with the Settlement Agreement 
     executed on December 14, 1995, and the Accommodation 
     Agreement (as incorporated by the Settlement Agreement), 
     provide the authority for the Tribe to enter agreements with 
     eligible Navajo families in order for those families to 
     remain residents of the Hopi Partitioned Lands for a period 
     of 75 years, subject to the terms and conditions of the 
     Accommodation Agreement;
       (4) the United States acknowledges and respects--
       (A) the sincerity of the traditional beliefs of the members 
     of the Tribe and the Navajo families residing on the Hopi 
     Partitioned Lands; and
       (B) the importance that the respective traditional beliefs 
     of the members of the Tribe and Navajo families have with 
     respect to the culture and way of life of those members and 
     families;
       (5) this Act, the Settlement Agreement, and the 
     Accommodation Agreement provide for the mutual respect and 
     protection of the traditional religious beliefs and practices 
     of the Tribe and the Navajo families residing on the Hopi 
     Partitioned Lands;
       (6) the Tribe is encouraged to work with the Navajo 
     families residing on the Hopi Partitioned Lands to address 
     their concerns regarding the establishment of family or 
     individual burial plots for deceased family members who have 
     resided on the Hopi Partitioned Lands; and
       (7) neither the Navajo Nation nor the Navajo families 
     residing upon Hopi Partitioned Lands were parties to or 
     signers of the Settlement Agreement between the United States 
     and the Hopi Tribe.

     SEC. 3. DEFINITIONS.

       Except as otherwise provided in this Act, for purposes of 
     this Act, the following definitions shall apply:
       (1) Accommodation.--The term ``Accommodation'' has the 
     meaning provided that term under the Settlement Agreement.
       (2) Hopi partitioned lands.--The term ``Hopi Partitioned 
     Lands'' means lands located in the Hopi Partitioned Area, as 
     defined in section 168.1(g) of title 25, Code of Federal 
     Regulations (as in effect on the date of enactment of this 
     Act).
       (3) Navajo partitioned lands.--The term ``Navajo 
     Partitioned Lands'' has the meaning provided that term in the 
     proposed regulations issued on November 1, 1995, at 60 Fed. 
     Reg. 55506.
       (4) New lands.--The term ``New Lands'' has the meaning 
     provided that term in section 700.701(b) of title 25, Code of 
     Federal Regulations.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.
       (6) Settlement agreement.--The term ``Settlement 
     Agreement'' means the agreement between the United States and 
     the Hopi Tribe executed on December 14, 1995.

[[Page S11467]]

       (7) Tribe.--The term ``Tribe'' means the Hopi Tribe.
       (8) Newly acquired trust lands.--The term ``newly acquired 
     trust lands'' means lands taken into trust for the Tribe 
     within the State of Arizona pursuant to this Act or the 
     Settlement Agreement.

     SEC. 4. RATIFICATION OF SETTLEMENT AGREEMENT.

       The United States approves, ratifies, and confirms the 
     Settlement Agreement.

     SEC. 5. CONDITIONS FOR LANDS TAKEN INTO TRUST.

       The Secretary shall take such action as may be necessary to 
     ensure that the following conditions are met prior to taking 
     lands into trust for the benefit of the Tribe pursuant to the 
     Settlement Agreement:
       (1) Selection of lands taken into trust.--
       (A) Primary area.--In accordance with section 7(a) of the 
     Settlement Agreement, the primary area within which lands 
     acquired by the Tribe may be taken into trust by the 
     Secretary for the benefit of the Tribe under the Settlement 
     Agreement shall be located in northern Arizona.
       (B) Requirements for lands taken into trust in the primary 
     area.--Lands taken into trust in the primary area referred to 
     in subparagraph (A) shall be--
       (i) land that is used substantially for ranching, 
     agriculture, or another similar use; and
       (ii) to the extent feasible, in contiguous parcels.
       (2) Acquisition of lands.--Before taking any land into 
     trust for the benefit of the Tribe under this section, the 
     Secretary shall ensure that--
       (A) at least 85 percent of the eligible Navajo heads of 
     household (as determined under the Settlement Agreement) have 
     entered into an accommodation or have chosen to relocate and 
     are eligible for relocation assistance (as determined under 
     the Settlement Agreement); and
       (B) the Tribe has consulted with the State of Arizona 
     concerning the lands proposed to be placed in trust, 
     including consulting with the State concerning the impact of 
     placing those lands into trust on the State and political 
     subdivisions thereof resulting from the removal of land from 
     the tax rolls in a manner consistent with the provisions of 
     part 151 of title 25, Code of Federal Regulations.
       (3) Prohibition.--The Secretary may not, pursuant to the 
     provisions of this Act and the Settlement Agreement, place 
     lands, any portion of which are located within or contiguous 
     to a 5-mile radius of an incorporated town or city (as those 
     terms are defined by the Secretary) in northern Arizona, into 
     trust for benefit of the Tribe without specific statutory 
     authority.
       (4) Expeditious action by the secretary.--Consistent with 
     all other provisions of this Act, the Secretary is directed 
     to take lands into trust under this Act expeditiously and 
     without undue delay.

     SEC. 6. ACQUISITION THROUGH CONDEMNATION OF CERTAIN 
                   INTERSPERSED LANDS.

       (a) In General.--
       (1) Action by the secretary.--
       (A) In general.--The Secretary shall take action as 
     specified in subparagraph (B), to the extent that the Tribe, 
     in accordance with section 7(b) of the Settlement Agreement--
       (i) acquires private lands; and
       (ii) requests the Secretary to acquire through condemnation 
     interspersed lands that are owned by the State of Arizona and 
     are located within the exterior boundaries of those private 
     lands in order to have both the private lands and the State 
     lands taken into trust by the Secretary for the benefit of 
     the Tribe.
       (B) Acquisition through condemnation.--With respect to a 
     request for an acquisition of lands through condemnation made 
     under subparagraph (A), the Secretary shall, upon the 
     recommendation of the Tribe, take such action as may be 
     necessary to acquire the lands through condemnation and, with 
     funds provided by the Tribe, pay the State of Arizona fair 
     market value for those lands in accordance with applicable 
     Federal law, if the conditions described in paragraph (2) are 
     met.
       (2) Conditions for acquisition through condemnation.--The 
     Secretary may acquire lands through condemnation under this 
     subsection if--
       (A) that acquisition is consistent with the purpose of 
     obtaining not more than 500,000 acres of land to be taken 
     into trust for the Tribe;
       (B) the State of Arizona concurs with the United States 
     that the acquisition is consistent with the interests of the 
     State; and
       (C) the Tribe pays for the land acquired through 
     condemnation under this subsection.
       (b) Disposition of Lands.--If the Secretary acquires lands 
     through condemnation under subsection (a), the Secretary 
     shall take those lands into trust for the Tribe in accordance 
     with this Act and the Settlement Agreement.
       (c) Private Lands.--The Secretary may not acquire private 
     lands through condemnation for the purpose specified in 
     subsection (a)(2)(A).

     SEC. 7. ACTION TO QUIET POSSESSION.

       If the United States fails to discharge the obligations 
     specified in section 9(c) of the Settlement Agreement with 
     respect to voluntary relocation of Navajos residing on Hopi 
     Partitioned Lands, or section 9(d) of the Settlement 
     Agreement, relating to the implementation of sections 700.137 
     through 700.139 of title 25, Code of Federal Regulations, on 
     the New Lands, including failure for reason of insufficient 
     funds made available by appropriations or otherwise, the 
     Tribe may bring an action to quiet possession that relates to 
     the use of the Hopi Partitioned Lands after February 1, 2000, 
     by a Navajo family that is eligible for an accommodation, but 
     fails to enter into an accommodation.

     SEC. 8. PAYMENT TO STATE OF ARIZONA.

       (a) Authorization of Appropriations.--Subject to subsection 
     (b), there are authorized to be appropriated to the 
     Department of the Interior $250,000 for fiscal year 1998, to 
     be used by the Secretary of the Interior for making a payment 
     to the State of Arizona.
       (b) Payment.--The Secretary shall make a payment in the 
     amount specified in subsection (a) to the State of Arizona 
     after an initial acquisition of land from the State has been 
     made by the Secretary pursuant to section 6.

     SEC. 9. 75-YEAR LEASING AUTHORITY.

       The first section of the Act of August 9, 1955 (69 Stat. 
     539, chapter 615; 25 U.S.C. 415) is amended by adding at the 
     end the following new subsections:
       ``(c) Leases Involving the Hopi Tribe and the Hopi 
     Partitioned Lands Accommodation Agreement.--Notwithstanding 
     subsection (a), a lease of land by the Hopi Tribe to Navajo 
     Indians on the Hopi Partitioned Lands may be for a term of 75 
     years, and may be extended at the conclusion of the term of 
     the lease.
       ``(d) Definitions.--For purposes of this section--
       ``(1) the term `Hopi Partitioned Lands' means lands located 
     in the Hopi Partitioned Area, as defined in section 168.1(g) 
     of title 25, Code of Federal Regulations (as in effect on the 
     date of enactment of this subsection); and
       ``(2) the term `Navajo Indians' means members of the Navajo 
     Tribe.''.

     SEC. 10. REAUTHORIZATION OF THE NAVAJO-HOPI RELOCATION 
                   HOUSING PROGRAM.

       Section 25(a)(8) of Public Law 93-531 (25 U.S.C. 640d-
     24(a)(8)) is amended by striking ``1996, and 1997'' and 
     inserting ``1996, 1997, 1998, 1999, and 2000''.

     SEC. 11. EFFECT OF THIS ACT ON CASES INVOLVING THE NAVAJO 
                   NATION AND THE HOPI TRIBE.

       Nothing in this Act or the amendments made by this Act 
     shall be interpreted or deemed to preclude, limit, or 
     endorse, in any manner, actions by the Navajo Nation that 
     seek, in court, an offset from judgments for payments 
     received by the Hopi Tribe under the Settlement Agreement.

     SEC. 12. WATER RIGHTS.

       (a) In General.--
       (1) Water rights.--Subject to the other provisions of this 
     section, newly acquired trust lands shall have only the 
     following water rights:
       (A) The right to the reasonable use of groundwater pumped 
     from such lands.
       (B) All rights to the use of surface water on such lands 
     existing under State law on the date of acquisition, with the 
     priority date of such right under State law.
       (C) The right to make any further beneficial use on such 
     lands which is unappropriated on the date each parcel of 
     newly acquired trust lands is taken into trust. The priority 
     date for the right shall be the date the lands are taken into 
     trust.
       (2) Rights not subject to forfeiture or abandonment.--The 
     Tribe's water rights for newly acquired trust lands shall not 
     be subject to forfeiture or abandonment arising from events 
     occurring after the date the lands are taken into trust.
       (b) Recognition as valid uses.--
       (1) Groundwater.--With respect to water rights associated 
     with newly acquired trust lands, the Tribe, and the United 
     States on the Tribe's behalf, shall recognize as valid all 
     uses of groundwater which may be made from wells (or their 
     subsequent replacements) in existence on the date each parcel 
     of newly acquired trust land is acquired and shall not object 
     to such groundwater uses on the basis of water rights 
     associated with the newly acquired trust lands. The Tribe, 
     and the United States on the Tribe's behalf, may object only 
     to the impact of groundwater uses on newly acquired trust 
     lands which are initiated after the date the lands affected 
     are taken into trust and only on grounds allowed by the State 
     law as it exits when the objection is made. The Tribe, and 
     the United States on the Tribe's behalf, shall not object to 
     the impact of groundwater uses on the Tribe's right to 
     surface water established pursuant to subsection (a)(3) when 
     those groundwater uses are initiated before the Tribe 
     initiates its beneficial use of surface water pursuant to 
     subsection (a)(3).
       (2) Surface water.--With respect to water rights associated 
     with newly acquired trust lands, the Tribe, and the United 
     States on the Tribe's behalf, shall recognize as valid all 
     uses of surface water in existence on or prior to the date 
     each parcel of newly acquired trust land is acquired and 
     shall not object to such surface water uses on the basis of 
     water rights associated with the newly acquired trust lands, 
     but shall have the right to enforce the priority of its 
     rights against all junior water rights the exercise of which 
     interfere with the actual use of the Tribe's senior surface 
     water rights.
       (3) Rule of construction.--Nothing in paragraph (1) or (2) 
     shall preclude the Tribe, or the United States on the Tribe's 
     behalf, from asserting objections to water rights and

[[Page S11468]]

     uses on the basis of the Tribe's water rights on its 
     currently existing trust lands.
       (c) Applicability of State Law on Lands Other Than Newly 
     Acquired Lands.--The Tribe, and the United States on the 
     Tribe's behalf, further recognize that State law applies to 
     water uses on lands, including subsurface estates, that exist 
     within the exterior boundaries of newly acquired trust lands 
     and that are owned by any party other than the Tribe.
       (d) Adjudication of Water Rights on Newly Acquired Trust 
     Lands.--The Tribe's water rights on newly acquired trust 
     lands shall be adjudicated with the rights of all other 
     competing users in the court now presiding over the Little 
     Colorado River Adjudication, or if that court no longer has 
     jurisdiction, in the appropriate State or Federal court. Any 
     controversies between or among users arising under Federal or 
     State law involving the Tribe's water rights on newly 
     acquired trust lands shall be resolved in the court now 
     presiding over the Little Colorado River Adjudication, or, if 
     that court no longer has jurisdiction, in the appropriate 
     State or Federal court. Nothing in this subsection shall be 
     construed to affect any court's jurisdiction; provided, that 
     the Tribe shall administer all water rights established in 
     subsection (a).
       (e) Prohibition.--Water rights for newly acquired trust 
     lands shall not be used, leased, sold, or transported for use 
     off of such lands or the Tribe's other trust lands, provided 
     that the Tribe may agree with other persons having junior 
     water rights to subordinate the Tribe's senior water rights. 
     Water rights for newly acquired trust lands can only be used 
     on those lands or other trust lands of the Tribe located 
     within the same river basin tributary to the main stream of 
     the Colorado River.
       (f) Subsurface Interests.--On any newly acquired trust 
     lands where the subsurface interest is owned by any party 
     other than the Tribe, the trust status of the surface 
     ownership shall not impair any existing right of the 
     subsurface owner to develop the subsurface interest and to 
     have access to the surface for the purpose of such 
     development.
       (g) Statutory Construction with Respect to Water Rights of 
     Other Federally Recognized Indian Tribes.--Nothing in this 
     section shall affect the water rights of any other federally 
     recognized Indian tribe with a priority date earlier than the 
     date the newly acquired trust lands are taken into trust.
       (h) Statutory Construction.--Nothing in this section shall 
     be construed to determine the law applicable to water use on 
     lands owned by the United States, other than on the newly 
     acquired trust lands. The granting of the right to make 
     beneficial use of unappropriated surface water on the newly 
     acquired trust lands with a priority date such lands are 
     taken into trust shall not be construed to imply that such 
     right is a Federal reserved water right. Nothing in this 
     section or any other provision of this Act shall be construed 
     to establish any Federal reserved right to groundwater. 
     Authority for the Secretary to take land into trust for the 
     Tribe pursuant to the Settlement Agreement and this Act shall 
     be construed as having been provided solely by the provisions 
     of this Act.

                          ____________________