II 

115TH CONGRESS 

1ST SESSION S. 2154 

To approve the Kickapoo Tribe Water Rights Settlement Agreement, and 

for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 16, 2017 

Mr. MORAN introduced the following bill; which was read twice and referred 

to the Committee on Indian Affairs 

A BILL 

To approve the Kickapoo Tribe Water Rights Settlement 

Agreement, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 (a) SHORT TITLE; TABLE OF CONTENTS.—This Act 

5 may be cited as the ‘‘Kickapoo Tribe in Kansas Water 

6 Rights Settlement Agreement Act’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 

Sec. 1. Short title. 

Sec. 2. Purposes. 

Sec. 3. Definitions. 

Sec. 4. Approval of the Kickapoo Tribe Water Rights Settlement Agreement. 

Sec. 5. Kickapoo Tribe Water Rights. 


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Sec. 6. Effect of Kickapoo Tribe Water Rights Settlement Agreement and Act. 

Sec. 7. Water facilities. 

Sec. 8. Waiver and release of claims; retention of claims. 

Sec. 9. Judicial proceedings. 

Sec. 10. Miscellaneous provisions. 

1 SEC. 2. PURPOSES. 

2 The purposes of this Act are— 

3 (1) to achieve a fair, equitable, and final settle4 ment of claims to water rights in the Delaware River 

5 Basin in Kansas for— 

6 (A) the Tribe; 

7 (B) its members and allottees; and 

8 (C) the United States, acting in its capac9 ity as trustee for the Tribe and its members 

10 and allottees; 

11 (2) to authorize, ratify, and confirm provisions 

12 of the Kickapoo Tribe Water Rights Settlement 

13 Agreement pertaining to the Tribal water rights ne14 gotiated by the Tribe, the State of Kansas, and the 

15 United States, and prior to the passage of this Act, 

16 entered into by the Tribe and the State of Kansas; 

17 (3) to authorize and direct the Secretary— 

18 (A) to execute the Kickapoo Tribe Water 

19 Rights Settlement Agreement; and 

20 (B) to take any other action necessary to 

21 carry out the Kickapoo Tribe Water Rights Set22 tlement Agreement in accordance with this Act; 

23 and 


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1 (4) to direct the Natural Resources Conserva2 tion Service of the Department of Agriculture to 

3 take certain actions under the authority of the Wa4 tershed Protection and Flood Prevention Act (16 

5 U.S.C. 1001 et seq.) and other actions consistent 

6 with this Act. 

7 SEC. 3. DEFINITIONS. 

8 In this Act: 

9 (1) ACT.—The term ‘‘Act’’ means the Act of 

10 Congress to authorize the United States to enter 

11 into the Kickapoo Tribe Water Rights Settlement 

12 Agreement and to execute the obligations set forth 

13 herein, and for other purposes set forth herein. 

14 (2) ALLOTTED LANDS.—The term ‘‘allotted 

15 lands’’ means lands within the boundaries of the 

16 Reservation that were allotted to individual Kick17 apoo Tribe members in accordance with a treaty or 

18 Federal statute, and that are held in trust by the 

19 United States for the benefit of one or more mem20 bers or successors in interest thereto. 

21 (3) ALLOTTEE.—The term ‘‘allottee’’ means an 

22 individual who holds a beneficial real property inter23 est in an Indian allotment that is— 

24 (A) located within the Reservation; and 

25 (B) held in trust by the United States. 


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1 (4) COURT.—The term ‘‘Court’’ means the 

2 United States District Court for the District of Kan3 sas unless otherwise specified herein. 

4 (5) DELAWARE RIVER BASIN.—The term 

5 ‘‘Delaware River Basin’’ means that area of land, 

6 depicted on the map attached as Exhibit 1 to the 

7 Kickapoo Tribe Water Rights Settlement Agree8 ment, within which the Chief Engineer will admin9 ister nondomestic Kansas water rights to protect the 

10 Tribal water rights. 

11 (6) ENFORCEABILITY DATE.—The term ‘‘en12 forceability date’’ means the date on which the Sec13 retary publishes in the Federal Register the state14 ment of findings described in section 6(c). 

15 (7) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 

16 has the meaning given the term in section 4 of the 

17 Indian Self-Determination and Education Assistance 

18 Act (25 U.S.C. 5304). 

19 (8) KANSAS WATER RIGHTS.—The term ‘‘Kan20 sas water rights’’ means a property right in the use 

21 of water obtained under Kansas law. 

22 (9) KICKAPOO TRIBE WATER RIGHTS SETTLE23 MENT AGREEMENT.—The term ‘‘Kickapoo Tribe 

24 Water Rights Settlement Agreement’’ means the 

25 Agreement executed by and between the Tribe and 


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1 the State of Kansas on September 9, 2016, that is 

2 the subject of this approving legislation. 

3 (10) MEMBER.—The term ‘‘member’’ means 

4 any person duly enrolled as a member of the Tribe. 

5 (11) RESERVATION.—The term ‘‘Reserva6 tion’’— 

7 (A) means the land depicted on the map 

8 attached to the Kickapoo Tribe Water Rights 

9 Settlement Agreement as Exhibit I; and 

10 (B) shall be used solely for the purposes of 

11 the Kickapoo Tribe Water Rights Settlement 

12 Agreement, this Act, and any judgment or de13 cree issued by the Court approving the Kick14 apoo Tribe Water Rights Settlement Agree15 ment. 

16 (12) SECRETARY.—The term ‘‘Secretary’’ 

17 means the Secretary of the Interior. 

18 (13) STATE OF KANSAS.—The term ‘‘State of 

19 Kansas’’ means the Kansas State government and 

20 all of its officers, agents, agencies, departments, and 

21 divisions. 

22 (14) TRIBAL WATER RIGHTS.—The term ‘‘Trib23 al water rights’’ means the water rights ratified, 

24 confirmed, and declared to be valid for the benefit 


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1 of the Tribe and its members and allottees, as set 

2 forth and described in section 5. 

3 (15) TRIBE.—The term ‘‘Tribe’’ means the 

4 Kickapoo Tribe in Kansas, a Federally recognized 

5 sovereign Indian Tribe that functions as a cus6 tomary and traditional Indian Tribe, acting on be7 half of itself and its members, but not acting on be8 half of members in their capacities as allottees. 

9 SEC. 4. APPROVAL OF THE KICKAPOO TRIBE WATER 

10 RIGHTS SETTLEMENT AGREEMENT. 

11 (a) RATIFICATION OF KICKAPOO TRIBE WATER

12 RIGHTS SETTLEMENT AGREEMENT.— 

13 (1) IN GENERAL.—Except as modified by this 

14 Act, and to the extent that the Kickapoo Tribe 

15 Water Rights Settlement Agreement does not con16 flict with this Act, the Kickapoo Tribe Water Rights 

17 Settlement Agreement is authorized, ratified, and 

18 confirmed. 

19 (2) AMENDMENTS.—Any amendment to the 

20 Kickapoo Tribe Water Rights Settlement Agreement 

21 is authorized, ratified, and confirmed, to the extent 

22 that the amendment is executed to make the Kick23 apoo Tribe Water Rights Settlement Agreement con24 sistent with this Act. 


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1 (b) EXECUTION OF KICKAPOO TRIBE WATER

2 RIGHTS SETTLEMENT AGREEMENT.— 

3 (1) IN GENERAL.—To the extent that the Kick4 apoo Tribe Water Rights Settlement Agreement does 

5 not conflict with this Act, the Secretary is directed 

6 to and promptly shall execute— 

7 (A) the Kickapoo Tribe Water Rights Set8 tlement Agreement (including any exhibit to the 

9 Kickapoo Tribe Water Rights Settlement 

10 Agreement requiring the signature of the Sec11 retary); and 

12 (B) any amendment to the Kickapoo Tribe 

13 Water Rights Settlement Agreement necessary 

14 to make the Kickapoo Tribe Water Rights Set15 tlement Agreement consistent with this Act. 

16 (2) MODIFICATIONS.—Nothing in this Act pre17 cludes the Secretary from approving modifications to 

18 exhibits to the Kickapoo Tribe Water Rights Settle19 ment Agreement not inconsistent with this Act, to 

20 the extent those modifications do not otherwise re21 quire congressional approval pursuant to section 

22 2116 of the Revised Statutes (25 U.S.C. 177) or 

23 other applicable Federal law. 

24 (c) ENVIRONMENTAL COMPLIANCE.— 


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1 (1) IN GENERAL.—In implementing the Kick2 apoo Tribe Water Rights Settlement Agreement, to 

3 the extent required the Secretary, shall promptly 

4 comply with all applicable requirements of— 

5 (A) the National Environmental Policy Act 

6 of 1969 (42 U.S.C. 4321 et seq.); 

7 (B) the Endangered Species Act of 1973 

8 (16 U.S.C. 1531 et seq.); 

9 (C) all other applicable Federal environ10 mental laws; and 

11 (D) all regulations promulgated under the 

12 laws described in subparagraphs (A) through 

13 (C). 

14 (2) COMPLIANCE WITH FEDERAL LAWS.— 

15 (A) COMPLIANCE.—The Secretary is di16 rected to carry out all Federal compliance nec17 essary to implement the Kickapoo Tribe Water 

18 Rights Settlement Agreement. 

19 (B) NEPA.—Execution of the Kickapoo 

20 Tribe Water Rights Settlement Agreement by 

21 the Secretary under this section shall not con22 stitute a major Federal action under the Na23 tional Environmental Policy Act of 1969 (42 

24 U.S.C. 4321 et seq.). 


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1 (3) LEAD AGENCY.—The Bureau of Indian Af2 fairs shall be designated as the lead agency with re3 spect to environmental compliance pursuant to this 

4 section. 

5 SEC. 5. KICKAPOO TRIBE WATER RIGHTS. 

6 (a) INTENT OF CONGRESS.—It is the intent of Con7 gress to provide to each allottee benefits that are equal 

8 to or exceed the benefits allottees possess as of the date 

9 of enactment of this Act, taking into consideration— 

10 (1) the potential risks, cost, and time delay as11 sociated with litigation that would be resolved by the 

12 Kickapoo Tribe Water Rights Settlement Agreement 

13 and this Act; 

14 (2) the availability of water from the Tribal 

15 water rights as set forth in the Kickapoo Tribe 

16 Water Rights Settlement Agreement; and 

17 (3) the applicability of section 7 of the Act of 

18 February 8, 1887 (25 U.S.C. 381), and this Act to 

19 protect the interests of allottees. 

20 (b) CONFIRMATION OF TRIBAL WATER RIGHTS.— 

21 (1) IN GENERAL.—A consumptive Tribal water 

22 right of up to 4,705 acre-feet of water per year is 

23 confirmed in accordance with the terms and condi24 tions of the Kickapoo Tribe Water Rights Settle25 ment Agreement. 


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1 (2) USE.—Subject to the terms and conditions 

2 of the Kickapoo Tribe Water Rights Settlement 

3 Agreement, this Act, and applicable Federal law, the 

4 Tribe may use the Tribal water rights for any pur5 pose. 

6 (c) HOLDING IN TRUST.—The Tribal water rights, 

7 as set forth in subsection (b), shall— 

8 (1) be held in trust by the United States on be9 half of the Tribe and its members and allottees in 

10 accordance with this section; 

11 (2) include the priority date set forth in the 

12 Kickapoo Tribe Water Rights Settlement Agree13 ment; and 

14 (3) not be subject to forfeiture or abandonment. 

15 (d) ALLOTTEES.— 

16 (1) APPLICABILITY OF ACT OF FEBRUARY 8, 

17 1887.—The provisions of section 7 of the Act of Feb18 ruary 8, 1887 (25 U.S.C. 381), relating to the use 

19 of water for irrigation purposes shall apply to the 

20 Tribal water rights. 

21 (2) ENTITLEMENT TO WATER.—Any entitle22 ment to water for allotted land located within the ex23 terior boundaries of the Reservation under Federal 

24 law shall be satisfied from the Tribal water rights. 


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1 (3) ALLOCATIONS.—Allotted land located within 

2 the exterior boundaries of the Reservation shall be 

3 entitled to a just and suitable allocation of water for 

4 irrigation and domestic purposes from the Tribal 

5 water rights. 

6 (4) MEMBERS.—Members who do not own in7 terests in allotted land shall nonetheless be entitled 

8 to the use of a portion of the Tribal water rights 

9 pursuant to the terms and conditions of the Kick10 apoo Tribe Water Rights Settlement Agreement and 

11 the Tribal Water Code. 

12 (5) EXHAUSTION OF REMEDIES.—Before as13 serting any claim against the United States under 

14 section 7 of the Act of February 8, 1887 (25 U.S.C. 

15 381), or any other applicable law, a member or allot16 tee shall exhaust remedies available under the Tribal 

17 Water Code or other applicable Tribal law. 

18 (6) CLAIMS.—Following exhaustion of remedies 

19 available under the Tribal Water Code or other ap20 plicable tribal law, a member or allottee may seek 

21 relief under section 7 of the Act of February 8, 

22 1887 (25 U.S.C. 381), or other applicable law. 

23 (7) AUTHORITY.—The Secretary shall have the 

24 authority to protect the rights of members or 

25 allottees as specified in this section. 


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1 (e) AUTHORITY OF TRIBE.— 

2 (1) IN GENERAL.—Except as provided in para3 graph (2), the Tribe shall have authority to use, al4 locate, distribute, and lease the Tribal water rights 

5 on or off the Reservation in accordance with— 

6 (A) the Kickapoo Tribe Water Rights Set7 tlement Agreement; 

8 (B) the Tribal Water Code or other appli9 cable tribal law; and 

10 (C) applicable Federal law. 

11 (2) LEASES BY ALLOTTEES.— 

12 (A) IN GENERAL.—An allottee may lease 

13 any interest in land held by the allottee, to14 gether with any water rights determined to be 

15 appurtenant to that interest in land. 

16 (B) WATER RIGHTS APPURTENANT.—Any 

17 water rights determined to be appurtenant to 

18 an interest in land leased by an allottee shall be 

19 used on or off the Reservation, consistent with 

20 the Kickapoo Tribe Water Rights Settlement 

21 Agreement. 

22 (C) WATER RIGHTS APPORTIONED.— 

23 Water apportioned from the Tribal water rights 

24 may be leased off Reservation pursuant to the 


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1 terms and conditions of the Kickapoo Tribe 

2 Water Rights Settlement Agreement. 

3 (f) TRIBAL WATER CODE.— 

4 (1) IN GENERAL.—Not later than 3 years after 

5 the enforceability date, the Tribe shall enact a Trib6 al Water Code, that provides for— 

7 (A) the management, regulation, and gov8 ernance of all uses of the Tribal water rights in 

9 accordance with the Kickapoo Tribe Water 

10 Rights Settlement Agreement; and 

11 (B) establishment by the Tribe of condi12 tions, permit requirements, and other limita13 tions relating to the diversion, storage, and use 

14 of the Tribal water rights in accordance with 

15 the Kickapoo Tribe Water Rights Settlement 

16 Agreement. 

17 (2) INCLUSIONS.—The Tribal Water Code shall 

18 provide— 

19 (A) that allocations of water to members 

20 or allottees shall be satisfied with water from 

21 the Tribal water rights; 

22 (B) that charges for delivery of water for 

23 irrigation purposes for allottees shall be as24 sessed in accordance with section 7 of the Act 

25 of February 8, 1887 (25 U.S.C. 381); 


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1 (C) the process by which a member or al2 lottee may request that the Tribe provide water 

3 for irrigation or domestic purposes in accord4 ance with this Act; 

5 (D) a due process system for the consider6 ation and determination by the Tribe of any re7 quest by a member or allottee for an allocation 

8 of such water for irrigation or domestic pur9 poses on allotted land, including a process for— 

10 (i) appeal and adjudication of any de11 nied or disputed distribution of water; and 

12 (ii) resolution of any contested admin13 istrative decision; and 

14 (E) a requirement that any member or al15 lottee with a claim relating to the enforcement 

16 of rights of the member or allottee under the 

17 Tribal Water Code or relating to the amount of 

18 water allocated to land of the allottee must first 

19 exhaust remedies available to the member or al20 lottee under Tribal law and the Tribal Water 

21 Code before initiating an action against the 

22 United States or petitioning the Secretary pur23 suant to subsection (d)(5). 

24 (3) ACTION BY SECRETARY.— 


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1 (A) IN GENERAL.—The Secretary shall ad2 minister the Tribal water rights until the Tribal 

3 Water Code is enacted and approved under this 

4 section. 

5 (B) APPROVAL.—Any provision of the 

6 Tribal Water Code and any amendment to the 

7 Tribal Water Code that affects the rights of 

8 members or allottees— 

9 (i) shall be subject to the approval of 

10 the Secretary; and 

11 (ii) shall not be valid until approved 

12 by the Secretary. 

13 (C) APPROVAL PERIOD.—The Secretary 

14 shall approve or disapprove the Tribal Water 

15 Code within a reasonable period of time after 

16 the date on which the Tribe submits the Tribal 

17 Water Code to the Secretary for approval. 

18 (g) EFFECT.—Except as otherwise specifically pro19 vided in this section, nothing in this Act— 

20 (1) authorizes any action by a member or allot21 tee (or any successor in interest to an allottee) 

22 against any individual or entity, or against the 

23 Tribe, under Federal, State, Tribal, or local law; or 


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1 (2) alters or affects the status of any action 

2 pursuant to section 1491(a) of title 28, United 

3 States Code. 

4 SEC. 6. EFFECT OF KICKAPOO TRIBE WATER RIGHTS SET5 TLEMENT AGREEMENT AND ACT. 

6 (a) ADMINISTRATION OF KANSAS WATER RIGHTS.— 

7 The State of Kansas shall administer all Kansas water 

8 rights in the Delaware River Basin in conformity with Ar9 ticle 7 of the Kickapoo Tribe Water Rights Settlement 

10 Agreement, the Memorandum of Agreement and other ex11 hibits referenced therein and attached thereto, and this 

12 Act. 

13 (b) EFFECT OF KICKAPOO TRIBE WATER RIGHTS

14 SETTLEMENT AGREEMENT AND ACT.—Nothing in the 

15 Kickapoo Tribe Water Rights Settlement Agreement or 

16 this Act— 

17 (1) affects the ability of the United States, act18 ing as sovereign, to take actions authorized by law, 

19 including any laws relating to health, safety, or the 

20 environment, including— 

21 (A) the Comprehensive Environmental Re22 sponse, Compensation, and Liability Act of 

23 1980 (42 U.S.C. 9601 et seq.); 

24 (B) the Safe Drinking Water Act (42 

25 U.S.C. 300f et seq.); 


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1 (C) the Federal Water Pollution Control 

2 Act (33 U.S.C. 1251 et seq.); and 

3 (D) any regulations implementing the Acts 

4 described in subparagraphs (A) through (C); 

5 (2) affects the ability of the United States to 

6 take actions acting as trustee for any other Indian 

7 Tribe or a member or allottee of any other Indian 

8 Tribe; 

9 (3) confers jurisdiction on any State court— 

10 (A) to interpret Federal law regarding 

11 health, safety, or the environment; 

12 (B) to determine the duties of the United 

13 States or other parties pursuant to Federal law 

14 regarding health, safety, or the environment; 

15 and 

16 (C) to conduct judicial review of Federal 

17 agency action; 

18 (4) waives any claim of a member of the Tribe 

19 in an individual capacity that does not derive from 

20 a right of the Tribe; or 

21 (5) affects the requirement of any party to the 

22 Kickapoo Tribe Water Rights Settlement Agreement 

23 or any of the exhibits to the Kickapoo Tribe Water 

24 Rights Settlement Agreement to comply with the 

25 National Environmental Policy Act of 1969 (42 


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1 U.S.C. 4321 et seq.) prior to performing the respec2 tive obligations of that party under the Kickapoo 

3 Tribe Water Rights Settlement Agreement. 

4 (c) ENFORCEABILITY DATE.—The enforceability date 

5 shall be the date on which the Secretary publishes in the 

6 Federal Register a statement of findings that the Court 

7 has approved and entered a judgment and decree approv8 ing the Kickapoo Tribe Water Rights Settlement Agree9 ment. 

10 SEC. 7. WATER FACILITIES. 

11 The Secretary of Agriculture, as delegated to the Di12 rector of the Natural Resources Conservation Service, in 

13 consultation with the Secretary as delegated to the Sec14 retary’s Indian Water Rights Office, is hereby directed— 

15 (1) to commence a study of the Upper Dela16 ware and Tributaries Watershed project, as author17 ized by the Committee on Environment and Public 

18 Works of the Senate (Senate Report 105–13; April 

19 22, 1997); and 

20 (2) not later than 2 years after the date of en21 actment of this Act, make recommendations to Con22 gress with respect to material alterations or changes 

23 in the Plan necessary to effectuate, in part, the 

24 Tribal water rights approved, ratified, and confirmed 


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1 by the Kickapoo Tribe Water Rights Settlement 

2 Agreement and this Act. 

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

4 CLAIMS. 

5 As described in Article 12 of the Kickapoo Tribe 

6 Water Rights Settlement Agreement— 

7 (1) upon the enactment of this Act, the Tribe 

8 and the United States agree to waive claims to 

9 water rights in the Delaware River Basin; and 

10 (2) nothing in this Act resolves or waives any 

11 claims for damages or losses by the Tribe against 

12 the United States, for injuries to water rights or 

13 claims of interference with, diversion, or taking of 

14 water (including claims for injury to lands resulting 

15 from such damages, losses, injuries, interference 

16 with, diversion, or taking) in the Delaware River 

17 Basin for failure to establish, quantify, acquire, de18 velop, enforce, or protect such water rights. 

19 SEC. 9. JUDICIAL PROCEEDINGS. 

20 Upon the date of enactment of this Act, the judicial 

21 proceedings described in Articles 10 and 11 of the Kick22 apoo Tribe Water Rights Settlement Agreement shall be 

23 and are hereby authorized to be commenced. 


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1 SEC. 10. MISCELLANEOUS PROVISIONS. 

2 (a) WAIVER OF SOVEREIGN IMMUNITY BY THE

3 UNITED STATES.—Except as provided in subsections (a) 

4 through (c) of section 208 of the Department of Justice 

5 Appropriation Act, 1953 (43 U.S.C. 666) and the Kick6 apoo Tribe Water Rights Settlement Agreement, nothing 

7 in this Act waives the sovereign immunity of the United 

8 States. 

9 (b) OTHER TRIBES NOT ADVERSELY AFFECTED.— 

10 Nothing in this Act quantifies or diminishes any land or 

11 water rights, or any claim or entitlement to land or water, 

12 of an Indian Tribe, band, or community other than the 

13 Tribe. 

14 (c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.— 

15 With respect to Indian land within the Reservation— 

16 (1) the United States shall not submit against 

17 any Indian-owned land located within the Reserva18 tion any claim for reimbursement of the cost to the 

19 United States of carrying out this Act and the Kick20 apoo Tribe Water Rights Settlement Agreement; and 

21 (2) no assessment of any Indian-owned land lo22 cated within the Reservation shall be made regard23 ing that cost. 

24 (d) EFFECT ON CURRENT LAW.—Nothing in this 

25 section affects any provision of law (including regulations) 

26 in effect on the day before the date of enactment of this 


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1 Act with respect to pre-enforcement review of any Federal 

2 environmental enforcement action. 

3 (e) NO USE OF CONDEMNATION OR EMINENT DO4 MAIN.—Land or interests in land may not be acquired by 

5 condemnation or eminent domain under this Act or for 

6 the purposes of this Act. 

Æ 


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