I 

110TH CONGRESS 

2D SESSION H. R. 5293 

To approve the settlement of the water rights claims of the Shoshone-Paiute 

Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior to carry out the settlement, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 7, 2008 

Mr. HELLER of Nevada introduced the following bill; which was referred to 

the Committee on Natural Resources 

A BILL 

To approve the settlement of the water rights claims of 

the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior 

to carry out the settlement, 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 This Act may be cited as the ‘‘Shoshone-Paiute 

5 Tribes of the Duck Valley Reservation Water Rights Set6 tlement Act’’. 

7 SEC. 2. FINDINGS. 

8 Congress finds that— 


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1 (1) it is the policy of the United States, in ac2 cordance with the trust responsibility of the United 

3 States to Indian tribes, to promote Indian self-deter4 mination and economic self-sufficiency and to settle 

5 Indian water rights claims without lengthy and cost6 ly litigation, if practicable; 

7 (2) quantifying rights to water and development 

8 of facilities needed to use tribal water supplies is es9 sential to the development of viable Indian reserva10 tion economies and the establishment of a perma11 nent reservation homeland; 

12 (3) uncertainty concerning the extent of the 

13 Shoshone-Paiute Tribes’ water rights has resulted in 

14 limited access to water and inadequate financial re15 sources necessary to achieve self-determination and 

16 self-sufficiency; 

17 (4) in 2006, the Tribes, the State of Idaho, the 

18 affected individual water users, and the United 

19 States resolved all tribal claims to water rights in 

20 the Snake River Basin Adjudication through a con21 sent decree entered by the District Court of the 

22 Fifth Judicial District of the State of Idaho, requir23 ing no further Federal action to quantify the Tribes’ 

24 water rights in the State of Idaho; 


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1 (5) as of the date of enactment of this Act, pro2 ceedings to determine the extent and nature of the 

3 water rights of the Tribes in the East Fork of the 

4 Owyhee River in Nevada are pending before the Ne5 vada State Engineer; 

6 (6) final resolution of the Tribes’ water claims 

7 in the East Fork of the Owyhee River adjudication 

8 will— 

9 (A) take many years; 

10 (B) entail great expense; 

11 (C) continue to limit the access of the 

12 Tribes to water, with economic and social con13 sequences; 

14 (D) prolong uncertainty relating to the 

15 availability of water supplies; and 

16 (E) seriously impair long-term economic 

17 planning and development for all parties to the 

18 litigation; 

19 (7) after many years of negotiation, the Tribes, 

20 the State, and the upstream water users have en21 tered into a settlement agreement to resolve perma22 nently all water rights of the Tribes in the State; 

23 and 


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1 (8) the Tribes also seek to resolve certain 

2 water-related claims for damages against the United 

3 States. 

4 SEC. 3. PURPOSES. 

5 The purposes of this Act are— 

6 (1) to resolve outstanding issues with respect to 

7 the East Fork of the Owyhee River in the State in 

8 such a manner as to provide important benefits to— 

9 (A) the United States; 

10 (B) the State; 

11 (C) the Tribes; and 

12 (D) the upstream water users; 

13 (2) to achieve a fair, equitable, and final settle14 ment of all claims of the Tribes, members of the 

15 Tribes, and the United States on behalf of the 

16 Tribes and members of Tribes to the waters of the 

17 East Fork of the Owyhee River in the State; 

18 (3) to ratify and provide for the enforcement of 

19 the Agreement among the parties to the litigation; 

20 (4) to resolve the Tribes’ water-related claims 

21 for damages against the United States; 

22 (5) to require the Secretary to perform all obli23 gations of the Secretary under the Agreement and 

24 this Act; and 


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1 (6) to authorize the actions and appropriations 

2 necessary to meet the obligations of the United 

3 States under the Agreement and this Act. 

4 SEC. 4. DEFINITIONS. 

5 In this Act: 

6 (1) AGREEMENT.—The term ‘‘Agreement’’ 

7 means the agreement entitled the ‘‘Agreement to Es8 tablish the Relative Water Rights of the Shoshone9 Paiute Tribes of the Duck Valley Reservation and 

10 the Upstream Water Users, East Fork Owyhee 

11 River’’ and signed in counterpart between, on, or 

12 about September 22, 2006, and January 15, 2007 

13 (including all attachments to that Agreement). 

14 (2) DEVELOPMENT FUND.—The term ‘‘Devel15 opment Fund’’ means the Shoshone-Paiute Tribes 

16 Water Rights Development Fund established by sec17 tion 8(b)(1). 

18 (3) EAST FORK OF THE OWYHEE RIVER.—The 

19 term ‘‘East Fork of the Owyhee River’’ means the 

20 portion of the east fork of the Owyhee River that is 

21 located in the State. 

22 (4) MAINTENANCE FUND.—The term ‘‘Mainte23 nance Fund’’ means the Shoshone-Paiute Tribes Op24 eration and Maintenance Fund established by sec25 tion 8(c)(1). 


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1 (5) RESERVATION.—The term ‘‘Reservation’’ 

2 means the Duck Valley Reservation established by 

3 the Executive order dated April 16, 1877, as ad4 justed pursuant to the Executive order dated May 4, 

5 1886, and Executive order numbered 1222 and 

6 dated July 1, 1910, for use and occupation by the 

7 Western Shoshones and the Paddy Cap Band of Pai8 utes. 

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

10 the Secretary of the Interior. 

11 (7) STATE.—The term ‘‘State’’ means the State 

12 of Nevada. 

13 (8) TRIBAL WATER RIGHTS.—The term ‘‘tribal 

14 water rights’’ means rights of the Tribes described 

15 in the Agreement relating to water, including 

16 groundwater, storage water, and surface water. 

17 (9) TRIBES.—The term ‘‘Tribes’’ means the 

18 Shoshone-Paiute Tribes of the Duck Valley Reserva19 tion. 

20 (10) UPSTREAM WATER USER.—The term ‘‘up21 stream water user’’ means a non-Federal water user 

22 that— 

23 (A) is located upstream from the Reserva24 tion on the East Fork of the Owyhee River; and 


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1 (B) is a signatory to the Agreement as a 

2 party to the East Fork of the Owyhee River ad3 judication. 

4 SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF 

5 AGREEMENT; AUTHORIZATION. 

6 (a) IN GENERAL.—Except as provided in subsection 

7 (c) and except to the extent that the Agreement otherwise 

8 conflicts with provisions of this Act, the Agreement is ap9 proved, ratified, and confirmed. 

10 (b) SECRETARIAL AUTHORIZATION.—The Secretary 

11 is authorized and directed to execute the Agreement as 

12 approved by Congress. 

13 (c) EXCEPTION FOR TRIBAL WATER MARKETING.— 

14 Notwithstanding any language in the Agreement to the 

15 contrary, nothing in this Act authorizes the Tribes to use 

16 or authorize others to use tribal water rights off the Res17 ervation, other than use for storage at Wild Horse Res18 ervoir or use on tribal land off the Reservation. 

19 (d) ENVIRONMENTAL COMPLIANCE.—Execution of 

20 the Agreement by the Secretary under this section shall 

21 not constitute major Federal action under the National 

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

23 Secretary shall carry out all environmental compliance re24 quired by Federal law in implementing the Agreement. 


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1 (e) PERFORMANCE OF OBLIGATIONS.—The Secretary 

2 and any other head of a Federal agency obligated under 

3 the Agreement shall perform actions necessary to carry 

4 out an obligation under the Agreement in accordance with 

5 this Act. 

6 SEC. 6. TRIBAL WATER RIGHTS. 

7 (a) IN GENERAL.—Tribal water rights shall be held 

8 in trust by the United States for the benefit of the Tribes. 

9 (b) ADMINISTRATION.— 

10 (1) ENACTMENT OF WATER CODE.—Not later 

11 than 3 years after the date of enactment of this Act, 

12 the Tribes, in accordance with the provision of the 

13 Tribes’ constitution and subject to the approval of 

14 the Secretary, shall enact a water code to administer 

15 tribal water rights. 

16 (2) INTERIM ADMINISTRATION.—The Secretary 

17 shall regulate the tribal water rights during the pe18 riod beginning on the date of enactment of this Act 

19 and ending on the date on which the Tribes enact 

20 a water code under paragraph (1). 

21 (c) TRIBAL WATER RIGHTS NOT SUBJECT TO

22 LOSS.—The tribal water rights shall not be subject to loss 

23 by abandonment, forfeiture, or nonuse. 


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1 SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT. 

2 (a) STATUS OF THE DUCK VALLEY INDIAN IRRIGA3 TION PROJECT.—Nothing in this Act shall affect the sta4 tus of the Duck Valley Indian Irrigation Project under 

5 Federal law. 

6 (b) CAPITAL COSTS NONREIMBURSABLE.—The cap7 ital costs associated with the Duck Valley Indian Irriga8 tion Project as the date of enactment of this Act, including 

9 any capital cost incurred with funds distributed under this 

10 Act for the Duck Valley Indian Irrigation Project, shall 

11 be nonreimbursable. 

12 SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS. 

13 (a) DEFINITION OF FUNDS.—In this section, the 

14 term ‘‘Funds’’ means— 

15 (1) the Development Fund; and 

16 (2) the Maintenance Fund. 

17 (b) DEVELOPMENT FUND.— 

18 (1) ESTABLISHMENT.—There is established in 

19 the Treasury of the United States a fund to be 

20 known as the ‘‘Shoshone-Paiute Tribes Water 

21 Rights Development Fund’’. 

22 (2) USE OF FUNDS.—The Tribes shall use 

23 amounts in the Development Fund to rehabilitate 

24 and, if the Tribes choose, to expand the Duck Valley 

25 Indian Irrigation Project, or for any of the following 

26 purposes: 


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1 (A) To pay or reimburse costs incurred by 

2 the Tribes in acquiring land and water rights. 

3 (B) For purposes of cultural preservation. 

4 (C) To restore or improve fish or wildlife 

5 habitat. 

6 (D) For fish or wildlife production, water 

7 resource development, or agricultural develop8 ment. 

9 (E) For water resource planning and de10 velopment. 

11 (F) To pay the costs of— 

12 (i) designing and constructing water 

13 supply and sewer systems for tribal com14 munities, including a water quality testing 

15 laboratory; 

16 (ii) other appropriate water-related 

17 projects and other related economic devel18 opment projects; 

19 (iii) the development of a water code; 

20 and 

21 (iv) other costs of implementing the 

22 Agreement. 

23 (3) AUTHORIZATION OF APPROPRIATIONS.— 

24 There is authorized to be appropriated to the Sec25 retary for deposit in the Development Fund 


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1 $9,000,000 for each of fiscal years 2008 through 

2 2012. 

3 (c) MAINTENANCE FUND.— 

4 (1) ESTABLISHMENT.—There is established in 

5 the Treasury of the United States a fund to be 

6 known as the ‘‘Shoshone-Paiute Tribes Operation 

7 and Maintenance Fund’’. 

8 (2) USE OF FUNDS.—The Tribes shall use 

9 amounts in the Maintenance Fund to pay or provide 

10 reimbursement for— 

11 (A) operation, maintenance, and replace12 ment costs of the Duck Valley Indian Irrigation 

13 Project and other water-related projects funded 

14 under this Act; or 

15 (B) operation, maintenance, and replace16 ment costs of water supply and sewer systems 

17 for tribal communities, including the operation 

18 and maintenance costs of a water quality test19 ing laboratory. 

20 (3) AUTHORIZATION OF APPROPRIATIONS.— 

21 There is authorized to be appropriated to the Sec22 retary for deposit in the Maintenance Fund 

23 $3,000,000 for each of fiscal years 2008 through 

24 2012. 


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1 (d) AVAILABILITY OF AMOUNTS FROM FUND.— 

2 Amounts made available under subsections (b)(3) and 

3 (c)(3) shall be available for expenditure or withdrawal only 

4 after the effective date as set forth in section 9(d). 

5 (e) ADMINISTRATION OF FUNDS.—The Secretary, in 

6 accordance with the American Indian Trust Fund Man7 agement Reform Act of 1994 (25 U.S.C. 4001 et seq.) 

8 shall manage the Funds, including by investing amounts 

9 from the Funds in accordance with the Act of April 1, 

10 1880 (25 U.S.C. 161), and the first section of the Act 

11 of June 24, 1938 (25 U.S.C. 162a). 

12 (f) EXPENDITURES AND WITHDRAWAL.— 

13 (1) TRIBAL MANAGEMENT PLAN.— 

14 (A) IN GENERAL.—The Tribes may with15 draw all or part of amounts in the Funds on 

16 approval by the Secretary of a tribal manage17 ment plan as described in the American Indian 

18 Trust Fund Management Reform Act of 1994 

19 (25 U.S.C. 4001 et seq.). 

20 (B) REQUIREMENTS.—In addition to the 

21 requirements under the American Indian Trust 

22 Fund Management Reform Act of 1994 (25 

23 U.S.C. 4001 et seq.), the tribal management 

24 plan shall require that the Tribes spend any 

25 amounts withdrawn from the Funds in accordVerDate Aug 31 2005 05:15 Feb 09, 2008 Jkt 069200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H5293.IH H5293

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1 ance with the purposes described in subsection 

2 (b)(2) or (c)(2). 

3 (C) ENFORCEMENT.—The Secretary may 

4 take judicial or administrative action to enforce 

5 the provisions of any tribal management plan to 

6 ensure that any amounts withdrawn from the 

7 Funds under the plan are used in accordance 

8 with this Act and the Agreement. 

9 (D) LIABILITY.—If the Tribes exercise the 

10 right to withdraw amounts from the Funds, 

11 neither the Secretary nor the Secretary of the 

12 Treasury shall retain any liability for the ex13 penditure or investment of the amounts. 

14 (2) EXPENDITURE PLAN.— 

15 (A) IN GENERAL.—The Tribes shall sub16 mit to the Secretary for approval an expendi17 ture plan for any portion of the amounts in the 

18 Funds that the Tribes do not withdraw under 

19 the tribal management plan. 

20 (B) DESCRIPTION.—The expenditure plan 

21 shall describe the manner in which, and the 

22 purposes for which, amounts of the Tribes re23 maining in the Funds will be used. 

24 (C) APPROVAL.—On receipt of an expendi25 ture plan under subparagraph (A), the SecVerDate Aug 31 2005 05:15 Feb 09, 2008 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H5293.IH H5293

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1 retary shall approve the plan if the Secretary 

2 determines that the plan is reasonable and con3 sistent with this Act and the Agreement. 

4 (D) ANNUAL REPORT.—For each Fund, 

5 the Tribes shall submit to the Secretary an an6 nual report that describes all expenditures from 

7 the Fund during the year covered by the report. 

8 (3) FUNDING AGREEMENT.—Notwithstanding 

9 any other provision of this Act, on receipt of a re10 quest from the Tribes, the Secretary shall include an 

11 amount from funds made available under this sec12 tion in the funding agreement of the Tribes under 

13 title IV of the Indian Self-Determination and Edu14 cation Assistance Act (25 U.S.C. 458aa et seq.), for 

15 use in accordance with subsections (b)(2) and (c)(2). 

16 No amount made available under this Act may be 

17 requested until the waivers under section 9(a) take 

18 effect. 

19 (g) NO PER CAPITA PAYMENTS.—No amount from 

20 the Funds (including any interest income accruing to the 

21 Funds) shall be distributed to a member of the Tribes on 

22 a per capita basis. 

23 SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS. 

24 (a) WAIVER AND RELEASE OF CLAIMS BY TRIBES

25 AND UNITED STATES AS TRUSTEE FOR TRIBES.—The 


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1 Tribes and the United States on behalf of the Tribes, are 

2 authorized to execute a waiver and release of— 

3 (1) all claims for water rights in, or for waters 

4 of, the East Fork of the Owyhee River that the 

5 Tribes, or the United States as trustee for the 

6 Tribes, asserted or could have asserted in any court 

7 proceeding; and 

8 (2) all claims for damages, losses, or injuries to 

9 water rights in the East Fork Owyhee River, includ10 ing claims of interference, diversion, or taking of 

11 water that the Tribes, or the United States as trust12 ee for the Tribes, asserted or could have asserted in 

13 any court proceedings. 

14 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

15 UNITED STATES.—The Tribes are authorized to execute 

16 a waiver and release of— 

17 (1) all claims against the United States, its 

18 agencies, or employees, for water rights in, or waters 

19 of, the East Fork of the Owyhee River that the 

20 United States asserted or could have asserted in any 

21 court proceeding; 

22 (2) all claims for damages, losses, or injuries to 

23 water rights, including claims of interference, diver24 sion, or taking of water, or claims for failure to pro25 tect, acquire, or develop water or water rights within 


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1 the East Fork of the Owyhee River, and claims for 

2 fishing rights under any Executive order to the ex3 tent that an injury to such a right resulted from a 

4 reduction in the quantity of water available in the 

5 East Fork Owyhee River; that accrued on or before 

6 the effective date specified in subsection (d), that 

7 the Tribes have asserted or could have asserted 

8 against the United States, its agencies, or employees 

9 in any court proceedings; and 

10 (3) all claims arising out of the negotiation and 

11 adoption of the Agreement. 

12 (c) RETENTION OF RIGHTS.—Notwithstanding the 

13 waivers and releases set forth in subsections (a) and (b), 

14 the Tribes and their members and the United States as 

15 trustee for the Tribes and their members, shall retain— 

16 (1) all claims for enforcement of the Agree17 ment, the Final Consent Decree, or this Act, 

18 through such legal and equitable remedies as may be 

19 available in any court of competent jurisdiction; 

20 (2) all rights to use and protect water rights ac21 quired pursuant to any state law; 

22 (3) all claims relating to activities affecting the 

23 quality of water; 

24 (4) all rights to land outside the Reservation; 

25 and 


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1 (5) all rights, remedies, privileges, immunities, 

2 and powers not specifically waived and released 

3 under the terms of the Agreement or this Act. 

4 (d) EFFECTIVE DATE.—Notwithstanding anything in 

5 the Agreement to the contrary, the waivers by the Tribes, 

6 or the United States on behalf of the Tribes, under this 

7 section shall take effect on the date on which the Secretary 

8 publishes in the Federal Register a statement of findings 

9 that includes a finding that— 

10 (1) the Secretary has executed the Agreement 

11 as approved by Congress; 

12 (2) all parties to the Agreement have executed 

13 the Agreement; 

14 (3) the Fourth Judicial District Court, Elko 

15 County, Nevada has issued a judgment and decree 

16 consistent with the Agreement from which no fur17 ther appeal can be taken; and 

18 (4) the amounts authorized under subsections 

19 (b)(3) and (c)(3) of section 8 have been appro20 priated. 

21 (e) FAILURE TO PUBLISH STATEMENT OF FIND22 INGS.—If the Secretary does not publish a statement of 

23 findings under subsection (d) by December 31, 2015— 

24 (1) the Agreement and this Act shall not take 

25 effect; and 


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1 (2) any funds and interest accrued thereon that 

2 have been appropriated under this Act shall imme3 diately revert to the general fund of the United 

4 States Treasury. 

5 (f) TOLLING OF CLAIMS.— 

6 (1) IN GENERAL.—Each applicable period of 

7 limitation and time-based equitable defense relating 

8 to a claim described in this section shall be tolled for 

9 the period beginning on the date of enactment of 

10 this Act and ending on the date on which the 

11 amounts authorized to be appropriated under sub12 sections (b)(3) and (c)(3) of section 8 are appro13 priated. 

14 (2) EFFECT OF SUBPARAGRAPH.—Nothing in 

15 this subparagraph revives any claim or tolls any pe16 riod of limitation or time-based equitable defense 

17 that expired before the date of enactment of this 

18 Act. 

19 (3) FUTURE ACQUISITION OF WATER RIGHTS.— 

20 Nothing in the Agreement or this Act precludes the 

21 Tribes, or the United States as trustee for the 

22 Tribes, from acquiring a water right in a state to 

23 the same extent as any other entity in the state, in 

24 accordance with state law. 


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1 SEC. 10. MISCELLANEOUS. 

2 (a) GENERAL DISCLAIMER.—The parties to the 

3 Agreement expressly reserve all rights not specifically 

4 granted, recognized, or relinquished by— 

5 (1) the settlement described in the Agreement; 

6 or 

7 (2) this Act. 

8 (b) LIMITATION OF CLAIMS AND RIGHTS.—Nothing 

9 in this Act— 

10 (1) establishes a standard for quantifying— 

11 (A) a Federal reserved water right; 

12 (B) an aboriginal claim; or 

13 (C) any other water right claim of an In14 dian tribe in a judicial or administrative pro15 ceeding; or 

16 (2) limits the right of a party to the Agreement 

17 to litigate any issue not resolved by the Agreement 

18 or this Act. 

19 (c) ADMISSION AGAINST INTEREST.—Nothing in this 

20 Act constitutes an admission against interest by a party 

21 in any legal proceeding. 

22 (d) RESERVATION.—The Reservation shall be shall 

23 be— 

24 (1) considered to be the property of the Tribes; 

25 and 


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1 (2) permanently held in trust by the United 

2 States for the sole use and benefit of the Tribes. 

3 (e) JURISDICTION.— 

4 (1) SUBJECT MATTER JURISDICTION.—Nothing 

5 in the Agreement or this Act restricts, enlarges, or 

6 otherwise determines the subject matter jurisdiction 

7 of any Federal, State, or tribal court. 

8 (2) CIVIL OR REGULATORY JURISDICTION.— 

9 Nothing in the Agreement or this Act impairs or im10 pedes the exercise of any civil or regulatory author11 ity of the United States, the State, or the Tribes. 

12 (3) CONSENT TO JURISDICTION.—The United 

13 States consents to jurisdiction in a proper forum for 

14 purposes of enforcing the provisions of the Agree15 ment. 

16 (4) EFFECT OF SUBSECTION.—Nothing in this 

17 subsection confers jurisdiction on any State court 

18 to— 

19 (A) enforce Federal environmental laws re20 lating to the duties of the United States under 

21 this Act; or 

22 (B) conduct judicial review of a Federal 

23 agency action. 

Æ 


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