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[Senate Report 112-218]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 522
112th Congress                                                   Report
                                 SENATE
 2d Session                                                     112-218

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  A BILL TO AUTHORIZE THE MESCALERO APACHE TRIBE TO LEASE ADJUDICATED 
                              WATER RIGHTS

                                _______
                                

               September 19, 2012.--Ordered to be printed

                                _______
                                

    Mr. Akaka, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 134]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 134) to authorize the Mescalero Apache Tribe to lease 
adjudicated water rights, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                PURPOSE

    The purpose of S. 134 is to authorize the Mescalero Apache 
Tribe to lease certain adjudicated water rights.

                               BACKGROUND

    The Mescalero Apache Tribe (the ``Tribe'') owns water 
rights that were adjudicated to it in State v. Lewis, 116 N.M. 
194, 861 P. 2d 235 (1993). The Tribe and neighboring 
communities experiencing water shortages have expressed an 
interest in leasing a portion of the Tribe's adjudicated water 
rights but lack the authority to do so. The Indian Non-
Intercourse Act\1\ has generally been understood to mandate 
Congressional Authorization for a tribe to lease its water 
rights.\2\
---------------------------------------------------------------------------
    \1\Codified at 25 U.S.C. Sec. 177.
    \2\See Felix Cohen, Cohen's Handbook of Federal Indian Law, 1193 
(Nell Jessup Newton, et al. ed., 2005 ed. 2005).
---------------------------------------------------------------------------

                          NEED FOR LEGISLATION

    Subject to certain limitation and conditions, S. 134 would 
authorize the Tribe to lease or otherwise transfer all or a 
portion of its adjudicated water rights to third parties for 
use in the State of New Mexico.
    Permitting the Mescalero Apache Tribe to lease its 
adjudicated water rights would be mutually beneficial to the 
Tribe and to non-Indian communities facing water shortages by 
providing a mechanism whereby such communities can gain access 
to water and by which the Tribe may receive an economic 
benefit. The legislation is consistent with a federal policy of 
respecting Tribal sovereignty and enables local decision-making 
about the Tribe's water resources.

                          LEGISLATIVE HISTORY

    On January 25, 2011, Senator Bingaman, for himself and 
Senator Udall of New Mexico, introduced S. 134 which was 
referred to the Committee. On October 20, 2011, the Committee 
held a legislative hearing to consider S. 134 and other 
measures.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    The short title of the Act is the ``Mescalero Apache Tribe 
Leasing Authorization Act.''

Section 2. Definitions

    This section defines the key terms in this Act. The defined 
terms are ``Adjudicated Water Rights,'' ``Secretary,'' 
``State,'' and ``Tribe.''

Section 3. Authorization to lease adjudicated water rights

    Section 3 states that the Tribe may lease, enter into 
contract with respect to, or transfer to another party, any or 
all of the adjudicated water rights; must comply with all state 
laws with respect to leasing or transferring the water rights; 
and may not permanently alienate any of the adjudicated water 
rights.
    Section 3 further states that the Secretary of the Interior 
shall not be liable for any loss or detriment resulting from a 
lease, contract, or other arrangement entered into pursuant to 
this section; that the authority under the Act satisfies the 
Indian Non-Intercourse Act (25 U.S.C. 177); and that non-use by 
a lessee or contractor will not result in a forfeiture, 
abandonment, relinquishment or other loss of the Tribe's 
adjudicated water rights.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    In an open business meeting on June 28, 2012, the Committee 
on Indian Affairs, by voice vote, adopted S. 134 and ordered 
the bill reported to the Senate, with the recommendation that 
the Senate do pass S. 134 as reported without amendment.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated July 10, 2012, was prepared 
for S. 134:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 10, 2012.
Hon. Daniel K. Akaka,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 134, the Mescalero 
Apache Tribe Leasing Authorization Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 134--Mescalero Apache Tribe Leasing Authorization Act

    S. 134 would authorize the Mescalero Apache Tribe of New 
Mexico to enter into a lease or other temporary conveyance of 
its water rights for up to 99 years. The bill would prohibit 
the Mescalero Apache Tribe from permanently forfeiting their 
water rights.
    Based on information from the Department of the Interior, 
CBO expects that the legislation would have no significant 
impact on the agency's administrative costs. S. 134 would have 
no effect on direct spending or revenues because any income 
resulting from additional leases would be paid directly to the 
Mescalero Apache Tribe. Therefore, pay-as-you-go procedures do 
not apply.
    S. 134 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments. 
Enacting this legislation would benefit the tribe.
    On October 31, 2011, CBO transmitted a cost estimate for 
H.R. 1461, the Mescalero Apache Tribe Leasing Authorization 
Act, as ordered reported by the House Committee on Natural 
Resources on October 5, 2011. The two bills are similar and the 
CBO cost estimates are the same.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee believes that 
the regulatory impact of S. 134 will be minimal.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received no communications from the 
Executive Branch regarding S.134.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that the 
enactment of S. 134 will not effect any changes in existing 
law.

                                  
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