II 

110TH CONGRESS 

1ST SESSION S. 462 

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

Tribes of the Duck Valley Indian Reservation in Nevada, to require 

the Secretary of the Interior to carry out the settlement, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 31, 2007 

Mr. REID (for himself and Mr. ENSIGN) introduced the following bill; which 

was read twice and referred to the Committee on Indian Affairs 

A BILL 

To approve the settlement of the water rights claims of 

the Shoshone-Paiute Tribes of the Duck Valley Indian 

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 Duck Valley Water Rights Settlement Act’’. 

6 SEC. 2. FINDINGS. 

7 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 right to water of the Shoshone-Paiute Tribes has 

14 limited the access of the Tribes to water and finan15 cial resources necessary to achieve self-determination 

16 and 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 implement the 

24 Tribes’ 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 are pending before the 

4 Nevada State Engineer; 

5 (6) final resolution through litigation of the 

6 water claims of the Tribes will— 

7 (A) take many years; 

8 (B) entail great expense; 

9 (C) continue to limit the access of the 

10 Tribes to water, with economic and social con11 sequences; 

12 (D) prolong uncertainty relating to the 

13 availability of water supplies; and 

14 (E) seriously impair long-term economic 

15 planning and development for all parties to the 

16 litigation; 

17 (7) after many years of negotiation, the United 

18 States, the Tribes, the State, and the upstream 

19 water users have entered into a settlement agree20 ment to resolve permanently all water rights of the 

21 Tribes in the State; and 

22 (8) the Tribes have certain water-related claims 

23 for damages against the United States. 

24 SEC. 3. PURPOSES. 

25 The purposes of this Act are— 


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1 (1) to resolve outstanding issues with respect to 

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

3 such a manner as to provide important benefits to— 

4 (A) the United States; 

5 (B) the State; 

6 (C) the Tribes; and 

7 (D) the upstream water users; 

8 (2) to achieve a fair, equitable, and final settle9 ment of all claims of the Tribes, members of the 

10 Tribes, and the United States on behalf of the 

11 Tribes to the East Fork of the Owyhee River in the 

12 State; 

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

14 the Agreement among the parties to the litigation; 

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

16 for damages against the United States; 

17 (5) to require the Secretary to perform all obli18 gations of the Secretary under the Agreement and 

19 this Act; and 

20 (6) to authorize the actions and appropriations 

21 necessary for the United States to meet the obliga22 tions of the United States under the Agreement and 

23 this Act. 

24 SEC. 4. DEFINITIONS. 

25 In this Act: 


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

2 means the agreement entitled the ‘‘Agreement to Es3 tablish the Relative Water Rights of the Shoshone4 Paiute Tribes of the Duck Valley Indian Reservation 

5 and the Upstream Water Users, East Fork Owyhee 

6 River’’ (including all attachments to that agree7 ment). 

8 (2) DEVELOPMENT FUND.—The term ‘‘Devel9 opment Fund’’ means the Shoshone-Paiute Tribes 

10 Water Rights Development Fund established by sec11 tion 7(b)(1). 

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

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

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

15 located in the State. 

16 (4) MAINTENANCE FUND.—The term ‘‘Mainte17 nance Fund’’ means the Shoshone-Paiute Tribes Op18 eration and Maintenance Fund established by sec19 tion 7(c)(1). 

20 (5) SECRETARY.—The term ‘‘Secretary’’ means 

21 the Secretary of the Interior. 

22 (6) STATE.—The term ‘‘State’’ means the State 

23 of Nevada. 

24 (7) TRIBAL WATER RIGHT.—The term ‘‘tribal 

25 water right’’ means a right of the Tribes described 


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1 in the Agreement relating to water, including 

2 groundwater, storage water, and surface water. 

3 (8) TRIBES.—The term ‘‘Tribes’’ means the 

4 Shoshone-Paiute Tribes of the Duck Valley Indian 

5 Reservation. 

6 (9) UPSTREAM WATER USER.—The term ‘‘up7 stream water user’’ means an individual water user 

8 that— 

9 (A) is located upstream from the Duck 

10 Valley Indian Reservation on the East Fork of 

11 the Owyhee River; and 

12 (B) is a signatory to the Agreement. 

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

14 AGREEMENT. 

15 (a) IN GENERAL.—Except as provided in section 1f 

16 of article III of the Agreement, and except to the extent 

17 that the Agreement otherwise conflicts with this Act, the 

18 Agreement is approved, ratified, and confirmed. 

19 (b) PERFORMANCE OF OBLIGATIONS.—The Sec20 retary and any other head of a Federal agency obligated 

21 under the Agreement shall perform any action necessary 

22 to carry out an obligation under the Agreement in accord23 ance with this Act. 


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1 SEC. 6. TRIBAL WATER RIGHTS. 

2 (a) IN GENERAL.—The Secretary shall hold the tribal 

3 water rights in trust on behalf of the United States for 

4 the benefit of the Tribes. 

5 (b) ADMINISTRATION.— 

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

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

8 the Tribes shall enact a water code to administer 

9 tribal water rights. 

10 (2) INTERIM ADMINISTRATION.—The Secretary 

11 shall regulate the tribal water rights during the pe12 riod beginning on the date of enactment of this Act 

13 and ending on the date on which the Tribes enact 

14 a water code under paragraph (1). 

15 (c) LOSS OF TRIBAL WATER RIGHTS.—The tribal 

16 water rights shall not be subject to loss by abandonment, 

17 forfeiture, or nonuse. 

18 SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS. 

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

20 term ‘‘Funds’’ means— 

21 (1) the Development Fund; and 

22 (2) the Maintenance Fund. 

23 (b) DEVELOPMENT FUND.— 

24 (1) ESTABLISHMENT.—There is established in 

25 the Treasury of the United States a fund to be 


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1 known as the ‘‘Shoshone-Paiute Tribes Water 

2 Rights Development Fund’’. 

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

4 amounts in the Development Fund— 

5 (A) to pay or reimburse costs incurred by 

6 the Tribes in acquiring land and water rights; 

7 (B) for purposes of cultural preservation; 

8 (C) to restore or improve fish or wildlife 

9 habitat; 

10 (D) for fish or wildlife production, water 

11 resource development, agricultural development, 

12 rehabilitation, and expansion of the Duck Val13 ley Irrigation Project; 

14 (E) for water resource planning and devel15 opment; or 

16 (F) to pay the costs of designing and con17 structing water supply and sewer systems for 

18 tribal communities, including— 

19 (i) a water quality testing laboratory; 

20 (ii) other appropriate water-related 

21 projects and other related economic devel22 opment projects; 

23 (iii) the development of a water code; 

24 and 


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1 (iv) other costs of implementing the 

2 Agreement. 

3 (3) AUTHORIZATION OF APPROPRIATIONS.— 

4 There is authorized to be appropriated to the Sec5 retary for deposit in the Development Fund 

6 $9,000,000 for each of fiscal years 2008 through 

7 2012. 

8 (c) MAINTENANCE FUND.— 

9 (1) ESTABLISHMENT.—There is established in 

10 the Treasury of the United States a fund to be 

11 known as the ‘‘Shoshone-Paiute Tribes Operation 

12 and Maintenance Fund’’. 

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

14 amounts in the Maintenance Fund to pay or provide 

15 reimbursement for the costs of— 

16 (A) operation and maintenance of the 

17 Duck Valley Irrigation Project and other water18 related projects funded under this Act; or 

19 (B) water supply and sewer systems for 

20 tribal communities, including the operation and 

21 maintenance costs of a water quality testing 

22 laboratory. 

23 (3) AUTHORIZATION OF APPROPRIATIONS.— 

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


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1 $3,000,000 for each of fiscal years 2008 through 

2 2012. 

3 (d) ADMINISTRATION OF FUNDS.— 

4 (1) IN GENERAL.—The Secretary, in accord5 ance with the American Indian Trust Fund Manage6 ment Reform Act of 1994 (25 U.S.C. 4001 et seq.), 

7 this Act, and the Agreement, shall manage the 

8 Funds, including by investing amounts from the 

9 Funds in accordance with— 

10 (A) the Act of April 1, 1880 (25 U.S.C. 

11 161); and 

12 (B) the first section of the Act of June 24, 

13 1938 (25 U.S.C. 162a). 

14 (2) DISTRIBUTIONS.— 

15 (A) WITHDRAWALS.— 

16 (i) IN GENERAL.—During any fiscal 

17 year, the Tribes may withdraw amounts 

18 from the Funds if the Secretary approves 

19 a plan of the Tribes to withdraw amounts 

20 under section 202 of the American Indian 

21 Trust Fund Management Reform Act of 

22 1994 (25 U.S.C. 4022). 

23 (ii) PLAN TO WITHDRAW AMOUNTS.— 

24 (I) INCLUSION.—In addition to 

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1 tion 202 of the American Indian 

2 Trust Fund Management Reform Act 

3 of 1994 (25 U.S.C. 4022), a plan of 

4 the Tribes to withdraw amounts under 

5 this subparagraph shall include a re6 quirement that the Tribes spend the 

7 amounts withdrawn from the Funds 

8 during a fiscal year for 1 or more 

9 uses described in subsection (b)(2) or 

10 (c)(2). 

11 (II) ENFORCEMENT.—The Sec12 retary may take administrative or ju13 dicial action to enforce a plan of the 

14 Tribes to withdraw amounts. 

15 (B) REMAINING AMOUNTS.— 

16 (i) IN GENERAL.—On approval of an 

17 expenditure plan submitted by the Tribes 

18 under clause (ii), the Secretary shall dis19 tribute to the Tribes amounts in the Funds 

20 not withdrawn by the Tribes during the 

21 preceding fiscal year. 

22 (ii) EXPENDITURE PLAN.— 

23 (I) IN GENERAL.—For each fis24 cal year, the Tribes shall submit to 

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1 ture plan for amounts described in 

2 clause (i). 

3 (II) INCLUSIONS.—An expendi4 ture plan under subclause (I) shall in5 clude— 

6 (aa) an accounting by the 

7 Tribes of any funds withdrawn 

8 by the Tribes from the Funds 

9 during the preceding fiscal year, 

10 including a description of any use 

11 by the Tribes of the funds and 

12 the amount remaining in the 

13 Funds for the preceding fiscal 

14 year; and 

15 (bb) a description of the 

16 means by which the Tribes will 

17 use any amount distributed 

18 under this subparagraph. 

19 (iii) APPROVAL.—The Secretary shall 

20 approve an expenditure plan under this 

21 subparagraph if the Secretary determines 

22 that the plan is— 

23 (I) reasonable; and 

24 (II) consistent with this Act and 

25 the Agreement. 


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1 (C) LIMITATIONS.— 

2 (i) TIMING.—No amount from the 

3 Funds (including any interest income ac4 cruing to the Funds) shall be distributed 

5 until the waivers under section 8(a) take 

6 effect. 

7 (ii) NO PER CAPITA DISTRIBU8 TIONS.—No amount from the Funds (in9 cluding any interest income accruing to the 

10 Funds) shall be distributed to a member of 

11 the Tribes on a per capita basis. 

12 (3) FUNDING AGREEMENT.—Notwithstanding 

13 any other provision of this Act, on receipt of a re14 quest from the Tribes, the Secretary shall include an 

15 amount appropriated under this subsection in the 

16 funding agreement of the Tribes under title IV of 

17 the Indian Self-Determination and Education Assist18 ance Act (25 U.S.C. 458aa et seq.), for use in ac19 cordance with subsections (b)(2) and (c)(2). 

20 (4) LIABILITY.—The Secretary and the Sec21 retary of the Treasury shall not retain any liability 

22 for the expenditure or investment of amounts dis23 tributed to the Tribes under this subsection. 

24 (5) CAPITAL COSTS NONREIMBURSABLE.—The 

25 capital costs associated with the Duck Valley Indian 


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1 Irrigation Project as of the date of enactment of this 

2 Act, including any capital cost incurred with funds 

3 distributed under this subsection for that project, 

4 shall be permanently nonreimbursable. 

5 SEC. 8. TRIBAL WAIVER OF CLAIMS. 

6 (a) WAIVERS.— 

7 (1) IN GENERAL.—Except as otherwise pro8 vided in the Agreement and this Act, the Tribes, and 

9 the United States on behalf of the Tribes, waive and 

10 release— 

11 (A) all claims to water in the East Fork of 

12 the Owyhee River and all claims to injury relat13 ing to that water; and 

14 (B) all claims against the State, any agen15 cy or political subdivision of the State, or any 

16 person, entity, or corporation relating to injury 

17 to a right of the Tribe under any Executive 

18 order entered on behalf of the Tribes, to the ex19 tent that the injury— 

20 (i) resulted from a flow modification 

21 or a reduction in the quantity of water 

22 available; and 

23 (ii) accrued on or before the effective 

24 date of the Agreement. 


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1 (2) ENFORCEMENT OF WAIVERS.—A waiver of 

2 a claim under this subsection by the Tribes, or the 

3 United States on behalf of the Tribes, shall be en4 forceable in the appropriate forum. 

5 (3) EFFECTIVE DATE.—A waiver by the Tribes, 

6 or the United States on behalf of the Tribes, of a 

7 claim under this subsection shall take effect on the 

8 date on which the Secretary publishes in the Federal 

9 Register a statement of findings that includes a 

10 finding that— 

11 (A) all parties to the Agreement have exe12 cuted the Agreement; 

13 (B) a decree acceptable to each party to 

14 the Agreement has been entered by the Fourth 

15 Judicial District Court, Elko County, Nevada; 

16 and 

17 (C) the Agreement has been ratified under 

18 section 5(a). 

19 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

20 UNITED STATES.— 

21 (1) IN GENERAL.—In consideration of perform22 ance by the United States of all actions required by 

23 the Agreement and this Act, including the authoriza24 tion of appropriations under subsections (b)(3) and 

25 (c)(3) of section 7, the Tribe shall execute a waiver 


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1 and release of any claim against the United States 

2 for— 

3 (A) a water right in the East Fork of the 

4 Owyhee River; 

5 (B) an injury to a right described in sub6 paragraph (A); 

7 (C) breach of trust— 

8 (i) for failure to protect, acquire, or 

9 develop a water right that accrued on or 

10 before the effective date of a waiver under 

11 this subsection; or 

12 (ii) arising out of the negotiation or 

13 adoption of the Agreement; or 

14 (D) a fishing right under any Executive 

15 order, to the extent that an injury to such a 

16 right— 

17 (i) resulted from a reduction in the 

18 quantity of water available in the East 

19 Fork of the Owyhee River; and 

20 (ii) accrued on or before the effective 

21 date of a waiver under this subsection. 

22 (2) EFFECTIVE DATE.— 

23 (A) IN GENERAL.—The waiver under para24 graph (1) takes effect on the date on which the 

25 amounts authorized to be appropriated under 


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1 subsections (b)(3) and (c)(3) of section 7 are 

2 distributed to the Tribes. 

3 (B) TOLLING OF CLAIMS.— 

4 (i) IN GENERAL.—Each applicable pe5 riod of limitation and time-based equitable 

6 defense relating to a claim described in 

7 paragraph (1) shall be tolled for the period 

8 beginning on the date of enactment of this 

9 Act and ending on the date on which the 

10 amounts authorized to be appropriated 

11 under subsections (b)(3) and (c)(3) of sec12 tion 7 are distributed to the Tribes. 

13 (ii) EFFECT OF SUBPARAGRAPH.— 

14 Nothing in this subparagraph revives any 

15 claim or tolls any period of limitation or 

16 time-based equitable defense that expired 

17 before the date of enactment of this Act. 

18 (c) RETENTION OF RIGHTS.— 

19 (1) IN GENERAL.—The Tribes shall retain all 

20 rights not waived by the Tribes, or the United 

21 States on behalf of the Tribes, in the Agreement or 

22 this Act. 

23 (2) CLAIMS OUTSIDE RESERVATION.—Nothing 

24 in the Agreement or this Act shall be considered to 


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1 be a waiver by the Tribes of any claim to a right on 

2 land outside the Duck Valley Indian Reservation. 

3 (3) FUTURE ACQUISITION OF WATER RIGHTS.— 

4 Nothing in the Agreement or this Act precludes the 

5 Tribes, or the United States as trustee for the 

6 Tribes, from acquiring a water right in the State to 

7 the same extent as any other entity in the State, in 

8 accordance with State law. 

9 SEC. 9. MISCELLANEOUS. 

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

11 Agreement expressly reserve all rights not specifically 

12 granted, recognized, or relinquished by— 

13 (1) the settlement described in the Agreement; 

14 or 

15 (2) this Act. 

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

17 in this Act— 

18 (1) establishes a standard for quantifying— 

19 (A) a Federal reserved water right; 

20 (B) an aboriginal claim; or 

21 (C) any other water right claim of an In22 dian tribe in a judicial or administrative pro23 ceeding; or 


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

2 to litigate any issue not resolved by the Agreement 

3 or this Act. 

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

5 Act shall be considered to be an admission against interest 

6 by a party in any legal proceeding. 

7 (d) DUCK VALLEY RESERVATION.—The Duck Valley 

8 Indian Reservation established by the Executive order 

9 dated April 16, 1877, as adjusted pursuant to the Execu10 tive order dated May 4, 1886, and Executive order num11 bered 1222 and dated July 1, 1910, for use and occupa12 tion by the Western Shoshones and the Paddy Cap Band 

13 of Paiutes shall be— 

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

15 and 

16 (2) permanently held in trust by the United 

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

18 (e) JURISDICTION.— 

19 (1) SUBJECT MATTER JURISDICTION.—Nothing 

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

21 otherwise determines the subject matter jurisdiction 

22 of any Federal, State, or tribal court. 

23 (2) CIVIL OR REGULATORY JURISDICTION.— 

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1 pedes the exercise of any civil or regulatory author2 ity of the United States, the State, or the Tribes. 

3 (3) CONSENT TO JURISDICTION.—The United 

4 States consents to jurisdiction in a proper forum for 

5 purposes of enforcing the provisions of the Agree6 ment. 

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

8 subsection confers jurisdiction on any State court 

9 to— 

10 (A) enforce Federal environmental laws re11 lating to the duties of the United States under 

12 this Act; or 

13 (B) conduct judicial review of a Federal 

14 agency action in accordance with this Act. 

Æ 


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