PUBLIC LAW 108–34—JUNE 23, 2003

ZUNI INDIAN TRIBE WATER RIGHTS

SETTLEMENT ACT OF 2003

117 STAT. 782 PUBLIC LAW 108–34—JUNE 23, 2003

Public Law 108–34

108th Congress

An Act

To approve the settlement of the water rights claims of the Zuni Indian Tribe

in Apache County, Arizona, and for other purposes.

Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Zuni Indian Tribe Water Rights

Settlement Act of 2003’’.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—Congress makes the following findings:

(1) It is the policy of the United States, in keeping with

its trust responsibility to Indian tribes, to promote Indian selfdetermination, religious freedom, political and cultural integrity, and economic self-sufficiency, and to settle, wherever possible, the water rights claims of Indian tribes without lengthy

and costly litigation.

(2) Quantification of rights to water and development of

facilities needed to use tribal water supplies effectively is essential to the development of viable Indian reservation communities, particularly in arid western States.

(3) On August 28, 1984, and by actions subsequent thereto,

the United States established a reservation for the Zuni Indian

Tribe in Apache County, Arizona upstream from the confluence

of the Little Colorado and Zuni Rivers for long-standing religious and sustenance activities.

(4) The water rights of all water users in the Little Colorado

River basin in Arizona have been in litigation since 1979,

in the Superior Court of the State of Arizona in and for the

County of Apache in Civil No. 6417, In re The General Adjudication of All Rights to Use Water in the Little Colorado River

System and Source.

(5) Recognizing that the final resolution of the Zuni Indian

Tribe’s water claims through litigation will take many years

and entail great expense to all parties, continue to limit the

Tribe’s access to water with economic, social, and cultural consequences to the Tribe, prolong uncertainty as to the availability of water supplies, and seriously impair the long-term

economic planning and development of all parties, the Tribe

and neighboring non-Indians have sought to settle their disputes to water and reduce the burdens of litigation.

(6) After more than 4 years of negotiations, which included

participation by representatives of the United States, the Zuni

Indian Tribe, the State of Arizona, and neighboring non-Indian

Zuni Indian

Tribe Water

Rights

Settlement

Act of 2003.

June 23, 2003

[S. 222]

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 783

communities in the Little Colorado River basin, the parties

have entered into a Settlement Agreement to resolve all of

the Zuni Indian Tribe’s water rights claims and to assist the

Tribe in acquiring surface water rights, to provide for the

Tribe’s use of groundwater, and to provide for the wetland

restoration of the Tribe’s lands in Arizona.

(7) To facilitate the wetland restoration project contemplated under the Settlement Agreement, the Zuni Indian

Tribe acquired certain lands along the Little Colorado River

near or adjacent to its Reservation that are important for

the success of the project and will likely acquire a small amount

of similarly situated additional lands. The parties have agreed

not to object to the United States taking title to certain of

these lands into trust status; other lands shall remain in tribal

fee status. The parties have worked extensively to resolve various governmental concerns regarding use of and control over

those lands, and to provide a successful model for these types

of situations, the State, local, and tribal governments intend

to enter into an Intergovernmental Agreement that addresses

the parties’ governmental concerns.

(8) Pursuant to the Settlement Agreement, the neighboring

non-Indian entities will assist in the Tribe’s acquisition of surface water rights and development of groundwater, store surface

water supplies for the Zuni Indian Tribe, and make substantial

additional contributions to carry out the Settlement Agreement’s provisions.

(9) To advance the goals of Federal Indian policy and

consistent with the trust responsibility of the United States

to the Tribe, it is appropriate that the United States participate

in the implementation of the Settlement Agreement and contribute funds for the rehabilitation of religious riparian areas

and other purposes to enable the Tribe to use its water entitlement in developing its Reservation.

(b) PURPOSES.—The purposes of this Act are—

(1) to approve, ratify, and confirm the Settlement Agreement entered into by the Tribe and neighboring non-Indians;

(2) to authorize and direct the Secretary of the Interior

to execute and perform the Settlement Agreement and related

waivers;

(3) to authorize and direct the United States to take legal

title and hold such title to certain lands in trust for the benefit

of the Zuni Indian Tribe; and

(4) to authorize the actions, agreements, and appropriations

as provided for in the Settlement Agreement and this Act.

SEC. 3. DEFINITIONS.

In this Act:

(1) EASTERN LCR BASIN.—The term ‘‘Eastern LCR basin’’

means the portion of the Little Colorado River basin in Arizona

upstream of the confluence of Silver Creek and the Little Colorado River, as identified on Exhibit 2.10 of the Settlement

Agreement.

(2) FUND.—The term ‘‘Fund’’ means the Zuni Indian Tribe

Water Rights Development Fund established by section 6(a).

(3) INTERGOVERNMENTAL AGREEMENT.—The term ‘‘Intergovernmental Agreement’’ means the intergovernmental agreement

between the Zuni Indian Tribe, Apache County, Arizona and

117 STAT. 784 PUBLIC LAW 108–34—JUNE 23, 2003

the State of Arizona described in article 6 of the Settlement

Agreement.

(4) PUMPING PROTECTION AGREEMENT.—The term ‘‘Pumping

Protection Agreement’’ means an agreement, described in

article 5 of the Settlement Agreement, between the Zuni Tribe,

the United States on behalf of the Tribe, and a local landowner

under which the landowner agrees to limit pumping of groundwater on his lands in exchange for a waiver of certain claims

by the Zuni Tribe and the United States on behalf of the

Tribe.

(5) RESERVATION; ZUNI HEAVEN RESERVATION.—The term

‘‘Reservation’’ or ‘‘Zuni Heaven Reservation’’, also referred to

as ‘‘Kolhu:wala:wa’’, means the following property in Apache

County, Arizona: Sections 26, 27, 28, 33, 34, and 35, Township

15 North, Range 26 East, Gila and Salt River Base and

Meridian; and Sections 2, 3, 4, 9, 10, 11, 13, 14, 15, 16, 23,

26, and 27, Township 14 North, Range 26 East, Gila and

Salt River Base and Meridian.

(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary

of the Interior.

(7) SETTLEMENT AGREEMENT.—The term ‘‘Settlement Agreement’’ means that agreement dated June 7, 2002, together

with all exhibits thereto. The parties to the Settlement Agreement include the Zuni Indian Tribe and its members, the

United States on behalf of the Tribe and its members, the

State of Arizona, the Arizona Game and Fish Commission,

the Arizona State Land Department, the Arizona State Parks

Board, the St. Johns Irrigation and Ditch Co., the Lyman

Water Co., the Round Valley Water Users’ Association, the

Salt River Project Agricultural Improvement and Power District, the Tucson Electric Power Company, the City of St. Johns,

the Town of Eagar, and the Town of Springerville.

(8) SRP.—The term ‘‘SRP’’ means the Salt River Project

Agricultural Improvement and Power District, a political subdivision of the State of Arizona.

(9) TEP.—The term ‘‘TEP’’ means Tucson Electric Power

Company.

(10) TRIBE, ZUNI TRIBE, OR ZUNI INDIAN TRIBE.—The terms

‘‘Tribe’’, ‘‘Zuni Tribe’’, or ‘‘Zuni Indian Tribe’’ means the body

politic and federally recognized Indian nation, and its members.

(11) ZUNI LANDS.—The term ‘‘Zuni Lands’’ means all the

following lands, in the State of Arizona, that, on the effective

date described in section 9(a), are—

(A) within the Zuni Heaven Reservation;

(B) held in trust by the United States for the benefit

of the Tribe or its members; or

(C) held in fee within the Little Colorado River basin

by or for the Tribe.

SEC. 4. AUTHORIZATION, RATIFICATIONS, AND CONFIRMATIONS.

(a) SETTLEMENT AGREEMENT.—To the extent the Settlement

Agreement does not conflict with the provisions of this Act, such

Settlement Agreement is hereby approved, ratified, confirmed, and

declared to be valid. The Secretary is authorized and directed

to execute the Settlement Agreement and any amendments

approved by the parties necessary to make the Settlement Agreement consistent with this Act. The Secretary is further authorized

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 785

to perform any actions required by the Settlement Agreement and

any amendments to the Settlement Agreement that may be mutually agreed upon by the parties to the Settlement Agreement.

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized

to be appropriated to the Zuni Indian Tribe Water Rights Development Fund established in section 6(a), $19,250,000, to be allocated

by the Secretary as follows:

(1) $3,500,000 for fiscal year 2004, to be used for the

acquisition of water rights and associated lands, and other

activities carried out, by the Zuni Tribe to facilitate the enforceability of the Settlement Agreement, including the acquisition

of at least 2,350 acre-feet per year of water rights before the

deadline described in section 9(b).

(2) $15,750,000, of which $5,250,000 shall be made available for each of fiscal years 2004, 2005, and 2006, to take

actions necessary to restore, rehabilitate, and maintain the

Zuni Heaven Reservation, including the Sacred Lake, wetlands,

and riparian areas as provided for in the Settlement Agreement

and under this Act.

(c) OTHER AGREEMENTS.—Except as provided in section 9, the

following 3 separate agreements, together with all amendments

thereto, are approved, ratified, confirmed, and declared to be valid:

(1) The agreement between SRP, the Zuni Tribe, and the

United States on behalf of the Tribe, dated June 7, 2002.

(2) The agreement between TEP, the Zuni Tribe, and the

United States on behalf of the Tribe, dated June 7, 2002.

(3) The agreement between the Arizona State Land Department, the Zuni Tribe, and the United States on behalf of

the Tribe, dated June 7, 2002.

SEC. 5. TRUST LANDS.

(a) NEW TRUST LANDS.—Upon satisfaction of the conditions

in paragraph 6.2 of the Settlement Agreement, and after the

requirements of section 9(a) have been met, the Secretary shall

take the legal title of the following lands into trust for the benefit

of the Zuni Tribe:

(1) In T. 14 N., R. 27 E., Gila and Salt River Base and

Meridian:

(A) Section 13: SW 1/4, S 1/2 NE 1/4 SE 1/4, W

1/2 SE 1/4, SE 1/4 SE 1/4;

(B) Section 23: N 1/2, N 1/2 SW 1/4, N 1/2 SE

1/4, SE 1/4 SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SW

1/4 SE 1/4;

(C) Section 24: NW 1/4, SW 1/4, S 1/2 NE 1/4, N

1/2 SE 1/4; and

(D) Section 25: N 1/2 NE 1/4, SE 1/4 NE 1/4, NE

1/4 SE 1/4.

(2) In T. 14 N., R. 28 E., Gila and Salt River Base and

Meridian:

(A) Section 19: W 1/2 E 1/2 NW 1/4, W 1/2 NW

1/4, W 1/2 NE 1/4 SW 1/4, NW 1/4 SW 1/4, S 1/2 SW

1/4;

(B) Section 29: SW 1/4 SW 1/4 NW 1/4, NW 1/4 NW

1/4 SW 1/4, S 1/2 N 1/2 SW 1/4, S 1/2 SW 1/4, S

1/2 NW 1/4 SE 1/4, SW 1/4 SE 1/4;

(C) Section 30: W 1/2, SE 1/4; and

117 STAT. 786 PUBLIC LAW 108–34—JUNE 23, 2003

(D) Section 31: N 1/2 NE 1/4, N 1/2 S 1/2 NE

1/4, S 1/2 SE 1/4 NE 1/4, NW 1/4, E 1/2 SW 1/4, N

1/2 NW 1/4 SW 1/4, SE 1/4 NW 1/4 SW 1/4, E 1/2 SW

1/4 SW 1/4, SW 1/4 SW 1/4 SW 1/4.

(b) FUTURE TRUST LANDS.—Upon satisfaction of the conditions

in paragraph 6.2 of the Settlement Agreement, after the requirements of section 9(a) have been met, and upon acquisition by

the Zuni Tribe, the Secretary shall take the legal title of the

following lands into trust for the benefit of the Zuni Tribe:

(1) In T. 14 N., R. 26E., Gila and Salt River Base and

Meridian: Section 25: N 1/2 NE 1/4, N 1/2 S 1/2 NE 1/4,

NW 1/4, N 1/2 NE 1/4 SW 1/4, NE 1/4 NW 1/4 SW 1/4.

(2) In T. 14 N., R. 27 E., Gila and Salt River Base and

Meridian:

(A) Section 14: SE 1/4 SW 1/4, SE 1/4;

(B) Section 16: S 1/2 SW 1/4 SE 1/4;

(C) Section 19: S 1/2 SE 1/4 SE 1/4;

(D) Section 20: S 1/2 SW 1/4 SW 1/4, E 1/2 SE

1/4 SE 1/4;

(E) Section 21: N 1/2 NE 1/4, E 1/2 NE 1/4 NW

1/4, SE 1/4 NW 1/4, W 1/2 SW 1/4 NE 1/4, N 1/2 NE

1/4 SW 1/4, SW 1/4 NE 1/4 SW 1/4, E 1/2 NW 1/4 SW

1/4, SW 1/4 NW 1/4 SW 1/4, W 1/2 SW 1/4 SW 1/4;

(F) Section 22: SW 1/4 NE 1/4 NE 1/4, NW 1/4 NE

1/4, S 1/2 NE 1/4, N 1/2 NW 1/4, SE 1/4 NW 1/4, N

1/2 SW 1/4 NW 1/4, SE 1/4 SW 1/4 NW 1/4, N 1/2 N

1/2 SE 1/4, N 1/2 NE 1/4 SW 1/4;

(G) Section 24: N 1/2 NE 1/4, S 1/2 SE 1/4;

(H) Section 29: N 1/2 N 1/2;

(I) Section 30: N 1/2 N 1/2, N 1/2 S 1/2 NW 1/4,

N 1/2 SW 1/4 NE 1/4; and

(J) Section 36: SE 1/4 SE 1/4 NE 1/4, NE 1/4 NE

1/4 SE 1/4.

(3) In T. 14 N., R. 28 E., Gila and Salt River Base and

Meridian:

(A) Section 18: S 1/2 NE 1/4, NE 1/4 SW 1/4, NE

1/4 NW 1/4 SW 1/4, S 1/2 NW 1/4 SW 1/4, S 1/2 SW

1/4, N 1/2 SE 1/4, N 1/2 SW 1/4 SE 1/4, SE 1/4 SE

1/4;

(B) Section 30: S 1/2 NE 1/4, W 1/2 NW 1/4 NE

1/4; and

(C) Section 32: N 1/2 NW 1/4 NE 1/4, SW 1/4 NE

1/4, S 1/2 SE 1/4 NE 1/4, NW 1/4, SW 1/4, N 1/2 SE

1/4, SW 1/4 SE 1/4, N 1/2 SE 1/4 SE 1/4, SW 1/4 SE

1/4 SE 1/4.

(c) NEW RESERVATION LANDS.—Upon satisfaction of the conditions in paragraph 6.2 of the Settlement Agreement, after the

requirements of section 9(a) have been met, and upon acquisition

by the Zuni Tribe, the Secretary shall take the legal title of the

following lands in Arizona into trust for the benefit of the Zuni

Tribe and make such lands part of the Zuni Indian Tribe Reservation in Arizona: Section 34, T. 14 N., R. 26 E., Gila and Salt

River Base and Meridian.

(d) LIMITATION ON SECRETARIAL DISCRETION.—The Secretary

shall have no discretion regarding the acquisitions described in

subsections (a), (b), and (c).

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 787

(e) LANDS REMAINING IN FEE STATUS.—The Zuni Tribe may

seek to have the legal title to additional lands in Arizona, other

than the lands described in subsection (a), (b), or (c), taken into

trust by the United States for the benefit of the Zuni Indian

Tribe pursuant only to an Act of Congress enacted after the date

of enactment of this Act specifically authorizing the transfer for

the benefit of the Zuni Tribe.

(f) FINAL AGENCY ACTION.—Any written certification by the

Secretary under subparagraph 6.2.B of the Settlement Agreement

constitutes final agency action under the Administrative Procedure

Act and is reviewable as provided for under chapter 7 of title

5, United States Code.

(g) NO FEDERAL WATER RIGHTS.—Lands taken into trust pursuant to subsection (a), (b), or (c) shall not have Federal reserved

rights to surface water or groundwater.

(h) STATE WATER RIGHTS.—The water rights and uses for the

lands taken into trust pursuant to subsection (a) or (c) must be

determined under subparagraph 4.1.A and article 5 of the Settlement Agreement. With respect to the lands taken into trust pursuant to subsection (b), the Zuni Tribe retains any rights or claims

to water associated with these lands under State law, subject to

the terms of the Settlement Agreement.

(i) FORFEITURE AND ABANDONMENT.—Water rights that are

appurtenant to lands taken into trust pursuant to subsection (a),

(b), or (c) shall not be subject to forfeiture and abandonment.

(j) AD VALOREM TAXES.—With respect to lands that are taken

into trust pursuant to subsection (a) or (b), the Zuni Tribe shall

make payments in lieu of all current and future State, county,

and local ad valorem property taxes that would otherwise be

applicable to those lands if they were not in trust.

(k) AUTHORITY OF TRIBE.—For purposes of complying with this

section and article 6 of the Settlement Agreement, the Tribe is

authorized to enter into—

(1) the Intergovernmental Agreement between the Zuni

Tribe, Apache County, Arizona, and the State of Arizona; and

(2) any intergovernmental agreement required to be

entered into by the Tribe under the terms of the Intergovernmental Agreement.

(l) FEDERAL ACKNOWLEDGEMENT OF INTERGOVERNMENTAL

AGREEMENTS.—

(1) IN GENERAL.—The Secretary shall acknowledge the

terms of any intergovernmental agreement entered into by

the Tribe under this section.

(2) NO ABROGATION.—The Secretary shall not seek to abrogate, in any administrative or judicial action, the terms of

any intergovernmental agreement that are consistent with

subparagraph 6.2.A of the Settlement Agreement and this Act.

(3) REMOVAL.—

(A) IN GENERAL.—Except as provided in subparagraph

(B), if a judicial action is commenced during a dispute

over any intergovernmental agreement entered into under

this section, and the United States is allowed to intervene

in such action, the United States shall not remove such

action to the Federal courts.

(B) EXCEPTION.—The United States may seek removal

if—

117 STAT. 788 PUBLIC LAW 108–34—JUNE 23, 2003

(i) the action concerns the Secretary’s decision

regarding the issuance of rights-of-way under section

8(c);

(ii) the action concerns the authority of a Federal

agency to administer programs or the issuance of a

permit under—

(I) the Federal Water Pollution Control Act

(33 U.S.C. 1251 et seq.);

(II) the Safe Drinking Water Act (42 U.S.C.

300f et seq.);

(III) the Clean Air Act (42 U.S.C. 7401 et

seq.); or

(IV) any other Federal law specifically

addressed in intergovernmental agreements; or

(iii) the intergovernmental agreement is inconsistent with a Federal law for the protection of civil

rights, public health, or welfare.

(m) RULE OF CONSTRUCTION.—Nothing in this Act shall be

construed to affect the application of the Act of May 25, 1918

(25 U.S.C. 211) within the State of Arizona.

(n) DISCLAIMER.—Nothing in this section repeals, modifies,

amends, changes, or otherwise affects the Secretary’s obligations

to the Zuni Tribe pursuant to the Act entitled ‘‘An Act to convey

certain lands to the Zuni Indian Tribe for religious purposes’’

approved August 28, 1984 (Public Law 98–408; 98 Stat. 1533)

(and as amended by the Zuni Land Conservation Act of 1990

(Public Law 101–486; 104 Stat. 1174)).

SEC. 6. DEVELOPMENT FUND.

(a) ESTABLISHMENT OF THE FUND.—

(1) IN GENERAL.—There is established in the Treasury of

the United States a fund to be known as the ‘‘Zuni Indian

Tribe Water Rights Development Fund’’, to be managed and

invested by the Secretary, consisting of—

(A) the amounts authorized to be appropriated in section 4(b); and

(B) the appropriation to be contributed by the State

of Arizona pursuant to paragraph 7.6 of the Settlement

Agreement.

(2) ADDITIONAL DEPOSITS.—The Secretary shall deposit in

the Fund any other monies paid to the Secretary on behalf

of the Zuni Tribe pursuant to the Settlement Agreement.

(b) MANAGEMENT OF THE FUND.—The Secretary shall manage

the Fund, make investments from the Fund, and make monies

available from the Fund for distribution to the Zuni Tribe consistent

with the American Indian Trust Fund Management Reform Act

of 1994 (25 U.S.C. 4001 et seq.) (referred to in this section as

the ‘‘Trust Fund Reform Act’’), this Act, and the Settlement Agreement.

(c) INVESTMENT OF THE FUND.—The Secretary shall invest

amounts in the Fund in accordance with—

(1) the Act of April 1, 1880 (21 Stat. 70, ch. 41, 25 U.S.C.

161);

(2) the first section of the Act of June 24, 1938 (52 Stat.

1037, ch. 648, 25 U.S.C. 162a); and

(3) subsection (b).

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 789

(d) AVAILABILITY OF AMOUNTS FROM THE FUND.—The funds

authorized to be appropriated pursuant to section 3104(b)(2) and

funds contributed by the State of Arizona pursuant to paragraph

7.6 of the Settlement Agreement shall be available for expenditure

or withdrawal only after the requirements of section 9(a) have

been met.

(e) EXPENDITURES AND WITHDRAWAL.—

(1) TRIBAL MANAGEMENT PLAN.—

(A) IN GENERAL.—The Zuni Tribe may withdraw all

or part of the Fund on approval by the Secretary of a

tribal management plan as described in the Trust Fund

Reform Act.

(B) REQUIREMENTS.—In addition to the requirements

under the Trust Fund Reform Act, the tribal management

plan shall require that the Zuni Tribe spend any funds

in accordance with the purposes described in section 4(b).

(2) ENFORCEMENT.—The Secretary may take judicial or

administrative action to enforce the provisions of any tribal

management plan to ensure that any monies withdrawn from

the Fund under the plan are used in accordance with this

Act.

(3) LIABILITY.—If the Zuni Tribe exercises the right to

withdraw monies from the Fund, neither the Secretary nor

the Secretary of the Treasury shall retain any liability for

the expenditure or investment of the monies withdrawn.

(4) EXPENDITURE PLAN.—

(A) IN GENERAL.—The Zuni Tribe shall submit to the

Secretary for approval an expenditure plan for any portion

of the funds made available under this Act that the Zuni

Tribe does not withdraw under this subsection.

(B) DESCRIPTION.—The expenditure plan shall describe

the manner in which, and the purposes for which, funds

of the Zuni Tribe remaining in the Fund will be used.

(C) APPROVAL.—On receipt of an expenditure plan

under subparagraph (A), the Secretary shall approve the

plan if the Secretary determines that the plan is reasonable

and consistent with this Act.

(5) ANNUAL REPORT.—The Zuni Tribe shall submit to the

Secretary an annual report that describes all expenditures from

the Fund during the year covered by the report.

(f) FUNDS FOR ACQUISITION OF WATER RIGHTS.—

(1) WATER RIGHTS ACQUISITIONS.—Notwithstanding subsection (e), the funds authorized to be appropriated pursuant

to section 4(b)(1)—

(A) shall be available upon appropriation for use in

accordance with section 4(b)(1); and

(B) shall be distributed by the Secretary to the Zuni

Tribe on receipt by the Secretary from the Zuni Tribe

of a written notice and a tribal council resolution that

describe the purposes for which the funds will be used.

(2) RIGHT TO SET OFF.—In the event the requirements

of section 9(a) have not been met and the Settlement Agreement

has become null and void under section 9(b), the United States

shall be entitled to set off any funds expended or withdrawn

from the amount appropriated pursuant to section 4(b)(1),

together with any interest accrued, against any claims asserted

117 STAT. 790 PUBLIC LAW 108–34—JUNE 23, 2003

by the Zuni Tribe against the United States relating to water

rights at the Zuni Heaven Reservation.

(3) WATER RIGHTS.—Any water rights acquired with funds

described in paragraph (1) shall be credited against any water

rights secured by the Zuni Tribe, or the United States on

behalf of the Zuni Tribe, for the Zuni Heaven Reservation

in the Little Colorado River General Stream Adjudication or

in any future settlement of claims for those water rights.

(g) NO PER CAPITA DISTRIBUTIONS.—No part of the Fund shall

be distributed on a per capita basis to members of the Zuni Tribe.

SEC. 7. CLAIMS EXTINGUISHMENT; WAIVERS AND RELEASES.

(a) FULL SATISFACTION OF MEMBERS’ CLAIMS.—

(1) IN GENERAL.—The benefits realized by the Tribe and

its members under this Act, including retention of any claims

and rights, shall constitute full and complete satisfaction of

all members’ claims for—

(A) water rights under Federal, State, and other laws

(including claims for water rights in groundwater, surface

water, and effluent) for Zuni Lands from time immemorial

through the effective date described in section 9(a) and

any time thereafter; and

(B) injuries to water rights under Federal, State, and

other laws (including claims for water rights in groundwater, surface water, and effluent, claims for damages

for deprivation of water rights, and claims for changes

to underground water table levels) for Zuni Lands from

time immemorial through the effective date described in

section 9(a).

(2) NO RECOGNITION OR ESTABLISHMENT OF INDIVIDUAL

WATER RIGHT.—Nothing in this Act recognizes or establishes

any right of a member of the Tribe to water on the Reservation.

(b) TRIBE AND UNITED STATES AUTHORIZATION AND WATER

QUANTITY WAIVERS.—The Tribe, on behalf of itself and its members

and the Secretary on behalf of the United States in its capacity

as trustee for the Zuni Tribe and its members, are authorized,

as part of the performance of their obligations under the Settlement

Agreement, to execute a waiver and release, subject to paragraph

11.4 of the Settlement Agreement, for claims against the State

of Arizona, or any agency or political subdivision thereof, or any

other person, entity, corporation, or municipal corporation, under

Federal, State, or other law for any and all—

(1) past, present, and future claims to water rights

(including water rights in groundwater, surface water, and

effluent) for Zuni Lands from time immemorial through the

effective date described in section 9(a) and any time thereafter,

except for claims within the Zuni Protection Area as provided

in article 5 of the Settlement Agreement;

(2) past and present claims for injuries to water rights

(including water rights in groundwater, surface water, and

effluent and including claims for damages for deprivation of

water rights and any claims for changes to underground water

table levels) for Zuni Lands from time immemorial through

the effective date described in section 9(a); and

(3) past, present, and future claims for water rights and

injuries to water rights (including water rights in groundwater,

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 791

surface water, and effluent and including any claims for damages for deprivation of water rights and any claims for changes

to underground water table levels) from time immemorial

through the effective date described in section 9(a), and any

time thereafter, for lands outside of Zuni Lands but located

within the Little Colorado River basin in Arizona, based upon

aboriginal occupancy of lands by the Zuni Tribe or its predecessors.

(c) TRIBAL WAIVERS AGAINST THE UNITED STATES.—The Tribe

is authorized, as part of the performance of its obligations under

the Settlement Agreement, to execute a waiver and release, subject

to paragraphs 11.4 and 11.6 of the Settlement Agreement, for

claims against the United States (acting in its capacity as trustee

for the Zuni Tribe or its members, or otherwise acting on behalf

of the Zuni Tribe or its members), including any agencies, officials,

or employees thereof, for any and all—

(1) past, present, and future claims to water rights

(including water rights in groundwater, surface water, and

effluent) for Zuni Lands, from time immemorial through the

effective date described in section 9(a) and any time thereafter;

(2) past and present claims for injuries to water rights

(including water rights in groundwater, surface water, and

effluent and any claims for damages for deprivation of water

rights) for Zuni Lands from time immemorial through the effective date described in section 9(a);

(3) past, present, and future claims for water rights and

injuries to water rights (including water rights in groundwater,

surface water, and effluent and any claims for damages for

deprivation of water rights) from time immemorial through

the effective date described in section 9(a), and any time thereafter, for lands outside of Zuni Lands but located within the

Little Colorado River basin in Arizona, based upon aboriginal

occupancy of lands by the Zuni Tribe or its predecessors;

(4) past and present claims for failure to protect, acquire,

or develop water rights of, or failure to protect water quality

for, the Zuni Tribe within the Little Colorado River basin

in Arizona from time immemorial through the effective date

described in section 9(a); and

(5) claims for breach of the trust responsibility of the United

States to the Zuni Tribe arising out of the negotiation of the

Settlement Agreement or this Act.

(d) TRIBAL WAIVER OF WATER QUALITY CLAIMS AND INTERFERENCE WITH TRUST CLAIMS.—

(1) CLAIMS AGAINST THE STATE AND OTHERS.—

(A) INTERFERENCE WITH TRUST RESPONSIBILITY.—The

Tribe, on behalf of itself and its members, is authorized,

as part of the performance of its obligations under the

Settlement Agreement, to waive and release all claims

against the State of Arizona, or any agency or political

subdivision thereof, or any other person, entity, corporation,

or municipal corporation under Federal, State, or other

law, for claims of interference with the trust responsibility

of the United States to the Zuni Tribe arising out of the

negotiation of the Settlement Agreement or this Act.

(B) INJURY OR THREAT OF INJURY TO WATER QUALITY.— The Tribe, on behalf of itself and its members, is authorized, as part of the performance of its obligations under

117 STAT. 792 PUBLIC LAW 108–34—JUNE 23, 2003

the Settlement Agreement, to waive and release, subject

to paragraphs 11.4, 11.6, and 11.7 of the Settlement Agreement, all claims against the State of Arizona, or any agency

or political subdivision thereof, or any other person, entity,

corporation, or municipal corporation under Federal, State,

or other law, for—

(i) any and all past and present claims, including

natural resource damage claims under the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (42 U.S.C. 9601 et seq.), the

Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.),

or any other applicable statute, for injury to water

quality accruing from time immemorial through the

effective date described in section 9(a), for lands within

the Little Colorado River basin in the State of Arizona;

and

(ii) any and all future claims, including natural

resource damage claims under the Comprehensive

Environmental Response, Compensation, and Liability

Act of 1980 (42 U.S.C. 9601 et seq.), the Oil Pollution

Act of 1990 (33 U.S.C. 2701 et seq.), or any other

applicable statute, for injury or threat of injury to

water quality, accruing after the effective date

described in section 9(a), for any lands within the

Eastern LCR basin caused by—

(I) the lawful diversion or use of surface water;

(II) the lawful withdrawal or use of underground water, except within the Zuni Protection

Area, as provided in article 5 of the Settlement

Agreement;

(III) the Parties’ performance of any obligations under the Settlement Agreement;

(IV) the discharge of oil associated with routine physical or mechanical maintenance of wells

or diversion structures not inconsistent with

applicable law;

(V) the discharge of oil associated with routine

start-up and operation of well pumps not inconsistent with applicable law; or

(VI) any combination of the causes described

in subclauses (I) through (V).

(2) CLAIMS OF THE UNITED STATES.—The Tribe, on behalf

of itself and its members, is authorized to waive its right

to request that the United States bring—

(A) any claims for injuries to water quality under the

natural resource damage provisions of the Comprehensive

Environmental Response, Compensation, and Liability Act

of 1980 (42 U.S.C. 9601 et seq.), the Oil Pollution Act

of 1990 (33 U.S.C. 2701 et seq.) or any other applicable

statute, for lands within the Little Colorado River Basin

in the State of Arizona, accruing from time immemorial

through the effective date described in section 9(a); and

(B) any future claims for injuries or threat of injury

to water quality under the natural resource damage provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et

seq.), the Oil Pollution Act of 1990 (33 U.S.C. 2701 et

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 793

seq.), or any other applicable statute, accruing after the

effective date described in section 9(a), for any lands within

the Eastern LCR basin, caused by—

(i) the lawful diversion or use of surface water;

(ii) the lawful withdrawal or use of underground

water, except within the Zuni Protection Area, as provided in article 5 of the Settlement Agreement;

(iii) the Parties’ performance of any obligations

under the Settlement Agreement;

(iv) the discharge of oil associated with routine

physical or mechanical maintenance of wells or diversion structures not inconsistent with applicable law;

(v) the discharge of oil associated with routine

start-up and operation of well pumps not inconsistent

with applicable law; or

(vi) any combination of the causes described in

clauses (i) through (v).

(3) LIMITATIONS.—Notwithstanding the authorization for

the Tribe’s waiver of future water quality claims in paragraph

(1)(B)(ii) and the waiver in paragraph (2)(B), the Tribe, on

behalf of itself and its members, retains any statutory claims

for injury or threat of injury to water quality under the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (42 U.S.C. 9601 et seq.) and the Oil

Pollution Act of 1990 (33 U.S.C. 2701 et seq.), as described

in subparagraph 11.4(D) (3) and (4) of the Settlement Agreement, that accrue at least 30 years after the effective date

described in section 9(a).

(e) WAIVER OF UNITED STATES WATER QUALITY CLAIMS RELATED

TO SETTLEMENT LAND AND WATER.—

(1) PAST AND PRESENT CLAIMS.—As part of the performance

of its obligations under the Settlement Agreement, the United

States waives and releases, subject to the retentions in paragraphs 11.4, 11.6 and 11.7 of the Settlement Agreement, all

claims against the State of Arizona, or any agency or political

subdivision thereof, or any other person, entity, corporation,

or municipal corporation for—

(A) all past and present common law claims accruing

from time immemorial through the effective date described

in section 9(a) arising from or relating to water quality

in which the injury asserted is to the Tribe’s interest in

water, trust land, and natural resources in the Little Colorado River basin in the State of Arizona; and

(B) all past and present natural resource damage

claims accruing through the effective date described in

section 9(a) arising from or relating to water quality in

which the claim is based on injury to natural resources

or threat to natural resources in the Little Colorado River

basin in Arizona, only for those cases in which the United

States, through the Secretary or other designated Federal

official, would act on behalf of the Tribe as a natural

resource trustee pursuant to the National Contingency

Plan, as set forth, as of the date of enactment of this

Act, in section 300.600(b)(2) of title 40, Code of Federal

Regulations.

(2) FUTURE CLAIMS.—As part of the performance of its

obligations under the Settlement Agreement, the United States

117 STAT. 794 PUBLIC LAW 108–34—JUNE 23, 2003

waives and releases, subject to the retentions in paragraphs

11.4, 11.6 and 11.7 of the Settlement Agreement, the State

of Arizona, or any agency or political subdivision thereof, or

any other person, entity, corporation, or municipal corporation

for—

(A) all future common law claims arising from or

relating to water quality in which the injury or threat

of injury asserted is to the Tribe’s interest in water, trust

land, and natural resources in the Eastern LCR basin

in Arizona accruing after the effective date described in

section 9(a) caused by—

(i) the lawful diversion or use of surface water;

(ii) the lawful withdrawal or use of underground

water, except within the Zuni Protection Area, as provided in article 5 of the Settlement Agreement;

(iii) the Parties’ performance of any obligations

under the Settlement Agreement;

(iv) the discharge of oil associated with routine

physical or mechanical maintenance of wells or diversion structures not inconsistent with applicable law;

(v) the discharge of oil associated with routine

start-up and operation of well pumps not inconsistent

with applicable law; or

(vi) any combination of the causes described in

clauses (i) through (v); and

(B) all future natural resource damage claims accruing

after the effective date described in section 9(a) arising

from or relating to water quality in which the claim is

based on injury to natural resources or threat to natural

resources in the Eastern LCR basin in Arizona, only for

those cases in which the United States, through the Secretary or other designated Federal official, would act on

behalf of the Tribe as a natural resource trustee pursuant

to the National Contingency Plan, as set forth, as of the

date of enactment of this Act, in section 300.600(b)(2) of

title 40, Code of Federal Regulations, caused by—

(i) the lawful diversion or use of surface water;

(ii) the lawful withdrawal or use of underground

water, except within the Zuni Protection Area as provided in article 5 of the Settlement Agreement;

(iii) the Parties’ performance of their obligations

under this Settlement Agreement;

(iv) the discharge of oil associated with routine

physical or mechanical maintenance of wells or diversion structures not inconsistent with applicable law;

(v) the discharge of oil associated with routine

start-up and operation of well pumps not inconsistent

with applicable law; or

(vi) any combination of the causes described in

clauses (i) through (v).

(f) EFFECT.—Subject to subsections (b) and (e), nothing in this

Act or the Settlement Agreement affects any right of the United

States, or the State of Arizona, to take any actions, including

enforcement actions, under any laws (including regulations) relating

to human health, safety and the environment.

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 795

SEC. 8. MISCELLANEOUS PROVISIONS.

(a) WAIVER OF SOVEREIGN IMMUNITY.—If any party to the

Settlement Agreement or a Pumping Protection Agreement files

a lawsuit only relating directly to the interpretation or enforcement

of this Act, the Settlement Agreement, an agreement described

in paragraph (1), (2), or (3) of section 4(c), or a Pumping Protection

Agreement, naming the United States or the Tribe as a party,

or if any other landowner or water user in the Little Colorado

River basin in Arizona files a lawsuit only relating directly to

the interpretation or enforcement of article 11, the rights of de

minimis users in subparagraph 4.2.D or the rights of underground

water users under article 5 of the Settlement Agreement, naming

the United States or the Tribe as a party—

(1) the United States, the Tribe, or both may be added

as a party to any such litigation, and any claim by the United

States or the Tribe to sovereign immunity from such suit is

hereby waived, other than with respect to claims for monetary

awards except as specifically provided for in the Settlement

Agreement; and

(2) the Tribe may waive its sovereign immunity from suit

in the Superior Court of Apache County, Arizona for the limited

purposes of enforcing the terms of the Intergovernmental Agreement, and any intergovernmental agreement required to be

entered into by the Tribe under the terms of the Intergovernmental Agreement, other than with respect to claims for monetary awards except as specifically provided in the Intergovernmental Agreement.

(b) TRIBAL USE OF WATER.—

(1) IN GENERAL.—With respect to water rights made available under the Settlement Agreement and used on the Zuni

Heaven Reservation—

(A) such water rights shall be held in trust by the

United States in perpetuity, and shall not be subject to

forfeiture or abandonment;

(B) State law shall not apply to water uses on the

Reservation;

(C) the State of Arizona may not regulate or tax such

water rights or uses (except that the court with jurisdiction

over the decree entered pursuant to the Settlement Agreement or the Norviel Decree Court may assess administrative fees for delivery of this water);

(D) subject to paragraph 7.7 of the Settlement Agreement, the Zuni Tribe shall use water made available to

the Zuni Tribe under the Settlement Agreement on the

Zuni Heaven Reservation for any use it deems advisable;

(E) water use by the Zuni Tribe or the United States

on behalf of the Zuni Tribe for wildlife or instream flow

use, or for irrigation to establish or maintain wetland on

the Reservation, shall be considered to be consistent with

the purposes of the Reservation; and

(F)(i) not later than 3 years after the deadline described

in section 9(b), the Zuni Tribe shall adopt a water code

to be approved by the Secretary for regulation of water

use on the lands identified in subsections (a) and (b) of

section 5 that is reasonably equivalent to State water law

(including statutes relating to dam safety and groundwater

management); and

Deadline.

117 STAT. 796 PUBLIC LAW 108–34—JUNE 23, 2003

(ii) until such date as the Zuni Tribe adopts a water

code described in clause (i), the Secretary, in consultation

with the State of Arizona, shall administer water use and

water regulation on lands described in that clause in a

manner that is reasonably equivalent to State law

(including statutes relating to dam safety and groundwater

management).

(2) LIMITATION.— (A) IN GENERAL.—Except as provided in subparagraph

(B), the Zuni Tribe or the United States shall not sell,

lease, transfer, or transport water made available for use

on the Zuni Heaven Reservation to any other place.

(B) EXCEPTION.—Water made available to the Zuni

Tribe or the United States for use on the Zuni Heaven

Reservation may be severed and transferred from the Reservation to other Zuni Lands if the severance and transfer

is accomplished in accordance with State law (and once

transferred to any lands held in fee, such water shall

be subject to State law).

(c) RIGHTS-OF-WAY.—

(1) NEW AND FUTURE TRUST LAND.—The land taken into

trust under subsections (a) and (b) of section 5 shall be subject

to existing easements and rights-of-way.

(2) ADDITIONAL RIGHTS-OF-WAY.—

(A) IN GENERAL.—Notwithstanding any other provision

of law, the Secretary, in consultation with the Tribe, shall

grant additional rights-of-way or expansions of existing

rights-of-way for roads, utilities, and other accommodations

to adjoining landowners if—

(i) the proposed right-of-way is necessary to the

needs of the applicant;

(ii) the proposed right-of-way will not cause significant and substantial harm to the Tribe’s wetland restoration project or religious practices; and

(iii) the proposed right-of-way acquisition will

comply with the procedures in part 169 of title 25,

Code of Federal Regulations, not inconsistent with this

subsection and other generally applicable Federal laws

unrelated to the acquisition of interests across trust

lands.

(B) ALTERNATIVES.—If the criteria described in clauses

(i) through (iii) of subparagraph (A) are not met, the Secretary may propose an alternative right-of-way, or other

accommodation that complies with the criteria.

(d) CERTAIN CLAIMS PROHIBITED.—The United States shall

make no claims for reimbursement of costs arising out of the

implementation of this Act or the Settlement Agreement against

any Indian-owned land within the Tribe’s Reservation, and no

assessment shall be made in regard to such costs against such

lands.

(e) VESTED RIGHTS.—Except as described in paragraph 5.3 of

the Settlement Agreement (recognizing the Zuni Tribe’s use of

1,500 acre-feet per annum of groundwater) this Act and the Settlement Agreement do not create any vested right to groundwater

under Federal or State law, or any priority to the use of groundwater that would be superior to any other right or use of groundwater under Federal or State law, whether through this Act, the

PUBLIC LAW 108–34—JUNE 23, 2003 117 STAT. 797

Settlement Agreement, or by incorporation of any abstract, agreement, or stipulation prepared under the Settlement Agreement.

Notwithstanding the preceding sentence, the rights of parties to

the agreements referred to in paragraph (1), (2), or (3) of section

4(c) and paragraph 5.8 of the Settlement Agreement, as among

themselves, shall be as stated in those agreements.

(f) OTHER CLAIMS.—Nothing in the Settlement Agreement or

this Act quantifies or otherwise affects the water rights, claims,

or entitlements to water of any Indian tribe, band, or community,

other than the Zuni Indian Tribe.

(g) NO MAJOR FEDERAL ACTION.—

(1) IN GENERAL.—Execution of the Settlement Agreement

by the Secretary as provided for in section 4(a) shall not constitute major Federal action under the National Environmental

Policy Act (42 U.S.C. 4321 et seq.).

(2) SETTLEMENT AGREEMENT.—In implementing the Settlement Agreement, the Secretary shall comply with all aspects

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.); and

(C) all other applicable environmental laws (including

regulations).

SEC. 9. EFFECTIVE DATE FOR WAIVER AND RELEASE AUTHORIZATIONS.

(a) IN GENERAL.—The waiver and release authorizations contained in subsections (b) and (c) of section 7 shall become effective

as of the date the Secretary causes to be published in the Federal

Register a statement of all the following findings:

(1) This Act has been enacted in a form approved by

the parties in paragraph 3.1.A of the Settlement Agreement.

(2) The funds authorized by section 4(b) have been appropriated and deposited into the Fund.

(3) The State of Arizona has appropriated and deposited

into the Fund the amount required by paragraph 7.6 of the

Settlement Agreement.

(4) The Zuni Indian Tribe has either purchased or acquired

the right to purchase at least 2,350 acre-feet per annum of

surface water rights, or waived this condition as provided in

paragraph 3.2 of the Settlement Agreement.

(5) Pursuant to subparagraph 3.1.D of the Settlement

Agreement, the severance and transfer of surface water rights

that the Tribe owns or has the right to purchase have been

conditionally approved, or the Tribe has waived this condition

as provided in paragraph 3.2 of the Settlement Agreement.

(6) Pursuant to subparagraph 3.1.E of the Settlement

Agreement, the Tribe and Lyman Water Company have

executed an agreement relating to the process of the severance

and transfer of surface water rights acquired by the Zuni Tribe

or the United States, the pass-through, use, or storage of the

Tribe’s surface water rights in Lyman Lake, and the operation

of Lyman Dam.

(7) Pursuant to subparagraph 3.1.F of the Settlement

Agreement, all the parties to the Settlement Agreement have

Federal Register,

publication.

117 STAT. 798 PUBLIC LAW 108–34—JUNE 23, 2003

LEGISLATIVE HISTORY—S. 222:

SENATE REPORTS: No. 108–18 (Comm. on Indian Affairs).

CONGRESSIONAL RECORD, Vol. 149 (2003):

Mar. 13, considered and passed Senate.

June 3, considered and rejected in House.

June 5, considered and passed House.

Æ

agreed and stipulated to certain Arizona Game and Fish

abstracts of water uses.

(8) Pursuant to subparagraph 3.1.G of the Settlement

Agreement, all parties to the Settlement Agreement have

agreed to the location of an observation well and that well

has been installed.

(9) Pursuant to subparagraph 3.1.H of the Settlement

Agreement, the Zuni Tribe, Apache County, Arizona and the

State of Arizona have executed an Intergovernmental Agreement that satisfies all of the conditions in paragraph 6.2 of

the Settlement Agreement.

(10) The Zuni Tribe has acquired title to the section of

land adjacent to the Zuni Heaven Reservation described as

Section 34, Township 14 North, Range 26 East, Gila and Salt

River Base and Meridian.

(11) The Settlement Agreement has been modified if and

to the extent it is in conflict with this Act and such modification

has been agreed to by all the parties to the Settlement Agreement.

(12) A court of competent jurisdiction has approved the

Settlement Agreement by a final judgment and decree.

(b) DEADLINE FOR EFFECTIVE DATE.—If the publication in the

Federal Register required under subsection (a) has not occurred

by December 31, 2006, sections 4 and 5, and any agreements

entered into pursuant to sections 4 and 5 (including the Settlement

Agreement and the Intergovernmental Agreement) shall not thereafter be effective and shall be null and void. Any funds and the

interest accrued thereon appropriated pursuant to section 4(b)(2)

shall revert to the Treasury, and any funds and the interest accrued

thereon appropriated pursuant to paragraph 7.6 of the Settlement

Agreement shall revert to the State of Arizona.

Approved June 23, 2003.