II 

110TH CONGRESS 

2D SESSION S. 3355 

To authorize the Crow Tribe of Indians water rights settlement, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

JULY 29 (legislative day, JULY 28), 2008 

Mr. TESTER (for himself and Mr. BAUCUS) introduced the following bill; 

which was read twice and referred to the Committee on Indian Affairs 

A BILL 

To authorize the Crow Tribe of Indians water rights 

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 ‘‘Crow Tribe Water 

5 Rights Settlement Act of 2008’’. 

6 SEC. 2. PURPOSES. 

7 The purposes of this Act are— 

8 (1) to achieve a fair, equitable, and final settle9 ment of claims to water rights in the State of Mon10 tana for— 


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1 (A) the Crow Tribe; and 

2 (B) the United States for the benefit of 

3 the Tribe and allottees; 

4 (2) to authorize, ratify, and confirm the Crow 

5 Tribe-Montana Water Rights Compact entered into 

6 by the Tribe and the State on June 22, 1999; 

7 (3) to authorize and direct the Secretary of the 

8 Interior— 

9 (A) to execute the Crow Tribe-Montana 

10 Water Rights Compact; and 

11 (B) to take any other action necessary to 

12 carry out the Compact in accordance with this 

13 Act; and 

14 (4) to authorize the appropriation of funds nec15 essary for the implementation of the Compact and 

16 this Act. 

17 SEC. 3. DEFINITIONS. 

18 In this Act: 

19 (1) ALLOTTEE.—The term ‘‘allottee’’ means 

20 any individual who holds a beneficial real property 

21 interest in an allotment of Indian land that is— 

22 (A) located within the Reservation or the 

23 ceded strip; and 

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


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1 (2) CEDED STRIP.—The term ‘‘ceded strip’’ 

2 means the area identified on the map attached as 

3 appendix 5 to the Compact. 

4 (3) CIP OM&R.—The term ‘‘CIP OM&R’’ 

5 means— 

6 (A) any recurring or ongoing activity asso7 ciated with the day-to-day operation of the 

8 Crow Irrigation Project; 

9 (B) any activity relating to scheduled or 

10 unscheduled maintenance of the Crow Irrigation 

11 Project; and 

12 (C) any activity relating to replacement of 

13 a feature of the Crow Irrigation Project. 

14 (4) COMPACT.—The term ‘‘Compact’’ means 

15 the water rights compact between the Tribe and the 

16 State contained in section 85–20–901 of the Mon17 tana Code Annotated (2007) (including any exhibit 

18 or part of or amendment to the Compact). 

19 (5) CROW IRRIGATION PROJECT.— 

20 (A) IN GENERAL.—The term ‘‘Crow Irri21 gation Project’’ means the irrigation project— 

22 (i) authorized by section 31 of the Act 

23 of March 3, 1891 (26 Stat. 1040); 

24 (ii) managed by the Secretary (acting 

25 through the Bureau of Indian Affairs); and 


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1 (iii) consisting of the project units 

2 of— 

3 (I) Agency; 

4 (II) Big Horn; 

5 (III) Forty Mile; 

6 (IV) Lodge Grass #1; 

7 (V) Lodge Grass #2; 

8 (VI) Pryor; 

9 (VII) Reno; 

10 (VIII) Soap Creek; and 

11 (IX) Upper Little Horn. 

12 (B) INCLUSION.—The term ‘‘Crow Irriga13 tion Project’’ includes land held in trust by the 

14 United States for the Tribe and the allottees in 

15 the Bozeman Trail and Two Leggins irrigation 

16 districts. 

17 (6) CROW SETTLEMENT FUND.—The term 

18 ‘‘Crow Settlement Fund’’ means the fund estab19 lished by section 11(a). 

20 (7) ECONOMIC DEVELOPMENT.—The term 

21 ‘‘Economic Development’’ means any activity the 

22 Tribe determines to further the economic develop23 ment of the Tribe. 

24 (8) ENFORCEABILITY DATE.—The term ‘‘en25 forceability date’’ means the date on which the SecVerDate Aug 31 2005 05:14 Jul 31, 2008 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3355.IS S3355

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1 retary publishes in the Federal Register the state2 ment of findings described in section 10(e). 

3 (9) FINAL.—The term ‘‘final’’ with reference to 

4 approval of the decree described in section 

5 10(e)(1)(A) means— 

6 (A) completion of any direct appeal to the 

7 Montana Supreme Court of a decree by the 

8 Montana Water Court pursuant to section 85– 

9 2–235 of the Montana Code Annotated (2007), 

10 including the expiration of time for filing of any 

11 such appeal; or 

12 (B) completion of any appeal to the appro13 priate United States Court of Appeals, includ14 ing the expiration of time in which a petition 

15 for certiorari may be filed in the United States 

16 Supreme Court, denial of such petition, or 

17 issuance of the United States Supreme Court’s 

18 mandate, whichever occurs last. 

19 (10) INDIAN TRIBE.—The term ‘‘Indian tribe’’ 

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

21 Indian Self-Determination and Education Assistance 

22 Act (25 U.S.C. 450b). 

23 (11) MR&I SYSTEM.— 

24 (A) IN GENERAL.—The term ‘‘MR&I Sys25 tem’’ means the municipal, rural, and industrial 


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1 water system of the Reservation, generally de2 scribed in the document entitled ‘‘Crow Indian 

3 Reservation Municipal, Rural and Industrial 

4 Water System Engineering Report’’ prepared 

5 by HKM Engineering, Inc., and dated July 

6 2008. 

7 (B) INCLUSIONS.—The term ‘‘MR&I Sys8 tem’’ includes— 

9 (i) the raw water intake, water treat10 ment plant, pipelines, storage tanks, pump11 ing stations, pressure-reducing valves, elec12 trical transmission facilities, and other 

13 items (including real property and ease14 ments necessary to deliver potable water to 

15 the Reservation) appurtenant to the sys16 tem described in subparagraph (A); and 

17 (ii) in descending order of construc18 tion priority— 

19 (I) the Big Horn River Valley 

20 Subsystem; and 

21 (II) the Little Big Horn River 

22 Valley Subsystem. 

23 (12) MR&I SYSTEM OM&R.—The term ‘‘MR&I 

24 System OM&R’’ means— 


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1 (A) any recurring or ongoing activity asso2 ciated with the day-to-day operation of the 

3 MR&I System; 

4 (B) any activity relating to scheduled or 

5 unscheduled maintenance of the MR&I System; 

6 and 

7 (C) any activity relating to replacement of 

8 project features of the MR&I System. 

9 (13) RESERVATION.—The term ‘‘Reservation’’ 

10 means the area identified on the map attached as 

11 appendix 4 to the Compact. 

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

13 means the Secretary of the Interior. 

14 (15) STATE.—The term ‘‘State’’ means the 

15 State of Montana. 

16 (16) TRIBAL COMPACT ADMINISTRATION.—The 

17 term ‘‘Tribal Compact Administration’’ means any 

18 activity relating to— 

19 (A) the development or enactment by the 

20 Tribe of the tribal water code; 

21 (B) establishment by the Tribe of a water 

22 resources department; and 

23 (C) the operation by the Tribe of that 

24 water resources department (or a successor 


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1 agency) during the 10-year period beginning on 

2 the date of establishment of the department. 

3 (17) TRIBAL WATER CODE.—The term ‘‘tribal 

4 water code’’ means a water code adopted by the 

5 Tribe in accordance with section 7(f). 

6 (18) TRIBAL WATER RIGHTS.—The term ‘‘tribal 

7 water rights’’ means— 

8 (A) the water rights of the Tribe described 

9 in the Compact; and 

10 (B) the water rights provided to the Tribe 

11 under section 8. 

12 (19) TRIBE.—The term ‘‘Tribe’’ means the 

13 Crow Tribe of Indians of the State of Montana on 

14 behalf of itself and its members (but not its mem15 bers in their capacities as allottees). 

16 (20) YELLOWTAIL DAM OM&R.—The term 

17 ‘‘Yellowtail Dam OM&R’’ means the charges levied 

18 by the Bureau of Reclamation for operation, mainte19 nance, and repair costs in association with storage 

20 contracts for water stored in Bighorn Lake. 

21 (21) WATER DEVELOPMENT PROJECT.—The 

22 term ‘‘Water Development Project’’ means any fu23 ture potable water system developed by the Tribe to 

24 serve the other portions of the Reservation, or such 

25 water development projects as the Tribe determines 


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1 to be appropriate to fulfill the water needs of its 

2 members. 

3 SEC. 4. RATIFICATION OF COMPACT. 

4 (a) IN GENERAL.—Except as modified by this Act, 

5 and to the extent the Compact does not conflict with this 

6 Act, the Compact is authorized, ratified, and confirmed. 

7 To the extent amendments to the Compact are executed 

8 that are consistent with this Act, such amendments are 

9 also authorized, ratified, and confirmed. 

10 (b) EXECUTION OF COMPACT.—To the extent that 

11 the Compact does not conflict with this Act, the Secretary 

12 is directed to and shall promptly execute the Compact, in13 cluding all exhibits to or parts of the Compact requiring 

14 the signature of the Secretary. 

15 (c) NATIONAL ENVIRONMENTAL POLICY ACT OF

16 1969.— 

17 (1) ENVIRONMENTAL COMPLIANCE.—In imple18 menting the Compact, the Secretary shall promptly 

19 comply with all applicable aspects of the National 

20 Environmental Policy Act of 1969 (42 U.S.C. 4321 

21 et seq.), the Endangered Species Act of 1973 (16 

22 U.S.C. 1531 et seq.), and all other applicable envi23 ronmental Acts and regulations. 

24 (2) EXECUTION OF THE COMPACT.—Execution 

25 of the Compact by the Secretary under this section 


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1 shall not constitute a major Federal action under 

2 the National Environmental Policy Act of 1969 (42 

3 U.S.C. 4321 et seq.). The Secretary is directed to 

4 carry out all Federal compliance necessary to imple5 ment the Compact. 

6 SEC. 5. REHABILITATION AND IMPROVEMENT OF THE 

7 CROW IRRIGATION PROJECT. 

8 (a) IN GENERAL.—The Secretary, acting through the 

9 Commissioner of Reclamation, shall carry out such activi10 ties as are necessary to rehabilitate and improve the water 

11 diversion and delivery features of the Crow Irrigation 

12 Project, in accordance with an agreement to be negotiated 

13 between the Secretary and the Tribe. 

14 (b) LEAD AGENCY.—The Bureau of Reclamation 

15 shall serve as the lead agency with respect to any activity 

16 to rehabilitate or improve the water diversion or delivery 

17 features of the Crow Irrigation Project. 

18 (c) SCOPE.—The scope of the rehabilitation and im19 provement under this section shall be as described in the 

20 document entitled ‘‘Engineering Evaluation of Existing 

21 Conditions, Crow Agency Rehabilitation Study’’ prepared 

22 by HKM Engineering, Inc., and dated July 2008. 

23 (d) COSTS TO TRIBE.—Costs incurred by the Sec24 retary in carrying out an agreement under subsection (a) 

25 that are allocated to the Tribe shall be nonreimbursable. 


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1 (e) FUNDING.—The Secretary’s obligation pursuant 

2 to this section shall not exceed $160,653,000, except that 

3 the total amount of $160,653,000 shall be increased or 

4 decreased, as appropriate, based on ordinary fluctuations 

5 from May 1, 2008, in construction cost indices applicable 

6 to the types of construction involved in the rehabilitation 

7 and improvement. 

8 (f) AGREEMENT.—At the request of the Tribe, in ac9 cordance with applicable Federal law, the Secretary shall 

10 enter into an agreement with the Tribe to implement the 

11 provisions of this section by which the Tribe shall plan, 

12 design, and construct any or all of the rehabilitation and 

13 improvement required by this section. 

14 (g) EFFECT OF ACT.—Nothing in this Act affects 

15 any responsibility of the Secretary relating to the oper16 ation, maintenance, or repair of the Crow Irrigation 

17 Project. 

18 SEC. 6. DESIGN AND CONSTRUCTION OF MR&I SYSTEM. 

19 (a) IN GENERAL.—The Secretary, acting through the 

20 Commissioner of Reclamation, shall carry out such activi21 ties as are necessary to design and construct the water 

22 diversion and delivery features of the MR&I System, in 

23 accordance with an agreement to be negotiated between 

24 the Secretary and the Tribe. 


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1 (b) LEAD AGENCY.—The Bureau of Reclamation 

2 shall serve as the lead agency with respect to any activity 

3 to design and construct the water diversion and delivery 

4 features of the MR&I System. 

5 (c) SCOPE.—The scope of the design and construc6 tion under this section shall be as described in the docu7 ment entitled ‘‘Crow Indian Reservation Municipal, Rural 

8 and Industrial Water System Engineering Report’’ pre9 pared by HKM Engineering, Inc., and dated July 2008. 

10 (d) COSTS TO TRIBE.—Costs incurred by the Sec11 retary in carrying out an agreement under subsection (a) 

12 that are allocated to the Tribe shall be nonreimbursable. 

13 (e) FUNDING.—The Secretary’s obligation pursuant 

14 to this section shall not exceed $200,840,000, except that 

15 the total amount of $200,840,000 shall be increased or 

16 decreased, as appropriate, based on ordinary fluctuations 

17 from May 1, 2008, in construction cost indices applicable 

18 to the types of construction involved in the design and con19 struction. 

20 (f) AGREEMENT.—At the request of the Tribe, in ac21 cordance with applicable Federal law, the Secretary shall 

22 enter into an agreement with the Tribe to implement the 

23 provisions of this section by which the Tribe shall plan, 

24 design, and construct any or all of the design and con25 struction required by this section. 


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1 SEC. 7. TRIBAL WATER RIGHTS. 

2 (a) INTENT OF CONGRESS.—It is the intent of Con3 gress to provide to each allottee benefits that are equiva4 lent to or exceed the benefits allottees currently possess, 

5 taking into consideration— 

6 (1) the potential risks, cost, and time delay as7 sociated with litigation that would be resolved by the 

8 Compact and this Act; 

9 (2) the availability of funding under this Act 

10 and from other sources; 

11 (3) the availability of water from the tribal 

12 water rights; and 

13 (4) the applicability of section 7 of the Act of 

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

15 (b) CONFIRMATION OF TRIBAL WATER RIGHTS.— 

16 (1) IN GENERAL.—The tribal water rights are 

17 ratified, confirmed, and declared to be valid. 

18 (2) USE.—Use of the tribal water rights shall 

19 be subject to the terms and conditions established by 

20 the Compact. 

21 (c) HOLDING IN TRUST.—The tribal water rights 

22 shall be held in trust by the United States for the use 

23 and benefit of the Tribe, and the allottees in accordance 

24 with this section. 

25 (d) ALLOTTEES.—As specified in and provided for in 

26 this Act: 


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1 (1) ENTITLEMENT TO WATER.—Any entitle2 ment to water of an allottee under Federal law shall 

3 be satisfied from the tribal water rights. 

4 (2) ALLOCATIONS.—Allottees shall be entitled 

5 to a just and equitable allocation of water for irriga6 tion purposes. 

7 (3) SATISFACTION OF CLAIMS.—The water 

8 rights and other benefits granted by this Act shall 

9 be considered full satisfaction of any claim of an al10 lottee waived pursuant to section 10(a)(2). 

11 (4) EXHAUSTION OF REMEDIES.—Before as12 serting any claim against the United States under 

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

14 381), or any other applicable law, an allottee shall 

15 exhaust remedies available under the tribal water 

16 code or other applicable tribal law. 

17 (5) CLAIMS.—Following exhaustion of remedies 

18 available under the tribal water code or other appli19 cable tribal law, an allottee may seek relief under 

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

21 381), or other applicable law. 

22 (6) AUTHORITY.—The Secretary shall have the 

23 authority to protect allottees’ rights as specified in 

24 this section. 

25 (e) AUTHORITY OF TRIBE.— 


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1 (1) IN GENERAL.—Except as provided in para2 graph (2), the Tribe shall have sole authority to allo3 cate, distribute, and lease the tribal water rights— 

4 (A) in accordance with the Compact; and 

5 (B) subject to approval of the Secretary of 

6 the tribal water code under subsection 

7 (f)(3)(B). 

8 (2) LEASES BY ALLOTTEES.—Notwithstanding 

9 paragraph (1), and subject to the tribal water code 

10 and applicable tribal and Federal law, an allottee 

11 may, pursuant to the tribal water code, lease any in12 terest in land held by the allottee, together with any 

13 water right determined to be appurtenant to the in14 terest in land. 

15 (f) TRIBAL WATER CODE.— 

16 (1) IN GENERAL.—Notwithstanding the time 

17 period set forth in article (IV)(A)(2)(b) of the Com18 pact, not later than 1 year after the enforceability 

19 date, the Tribe shall enact a tribal water code, that 

20 provides for— 

21 (A) the management, regulation and gov22 ernance of all uses of the tribal water rights in 

23 accordance with the Compact; and 

24 (B) establishment by the Tribe of condi25 tions, permit requirements, and other limitaVerDate Aug 31 2005 05:14 Jul 31, 2008 Jkt 069200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S3355.IS S3355

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1 tions relating to the storage, recovery, and use 

2 of the tribal water rights in accordance with the 

3 Compact. 

4 (2) INCLUSIONS.—Subject to the approval of 

5 the Secretary, the tribal water code shall provide 

6 that— 

7 (A) tribal allocations of water to allottees 

8 shall be satisfied with water from the tribal 

9 water rights; 

10 (B) charges for delivery of water for irriga11 tion purposes for allottees shall be assessed on 

12 a just and equitable basis; 

13 (C) there is a process by which an allottee 

14 may request that the Tribe provide water for ir15 rigation use in accordance with this Act; 

16 (D) there is a due process system for the 

17 consideration and determination by the Tribe of 

18 any request by an allottee, or any successor in 

19 interest to an allottee, for an allocation of such 

20 water for irrigation purposes on allotted land, 

21 including a process for— 

22 (i) appeal and adjudication of any de23 nied or disputed distribution of water; and 

24 (ii) resolution of any contested admin25 istrative decision; and 


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1 (E) there is a requirement that any allot2 tee with a claim relating to the enforcement of 

3 rights of the allottee under the tribal water 

4 code or relating to the amount of water allo5 cated to land of the allottee must first exhaust 

6 remedies available to the allottee under tribal 

7 law and the tribal water code before initiating 

8 an action against the United States or peti9 tioning the Secretary pursuant to subsection 

10 (d)(5). 

11 (3) ACTION BY SECRETARY.— 

12 (A) IN GENERAL.—The Secretary shall ad13 minister the tribal water rights until the tribal 

14 water code is enacted in accordance with para15 graph (1) and those provisions requiring ap16 proval pursuant to paragraph (2). 

17 (B) APPROVAL.—The tribal water code 

18 shall not be valid unless— 

19 (i) the provisions of the tribal water 

20 code required by paragraph (2) are ap21 proved by the Secretary; and 

22 (ii) each amendment to the tribal 

23 water code that affects a right of an allot24 tee is approved by the Secretary. 


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1 (g) EFFECT.—Except as otherwise specifically pro2 vided in this section, nothing in this Act— 

3 (1) authorizes any action by an allottee against 

4 any individual or entity, or against the Tribe, under 

5 Federal, State, tribal, or local law; or 

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

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

8 States Code. 

9 SEC. 8. STORAGE ALLOCATION FROM BIGHORN LAKE. 

10 (a) STORAGE ALLOCATION TO TRIBE.— 

11 (1) IN GENERAL.—As described in and subject 

12 to article III(A)(1)(b) of the Compact, the Secretary 

13 shall allocate to the Tribe 300,000 acre-feet per year 

14 of water stored in Bighorn Lake, Yellowtail Unit, 

15 Lower Bighorn Division, Pick Sloan Missouri Basin 

16 Program, Montana, under a water right held by the 

17 United States and managed by the Bureau of Rec18 lamation, as measured at the outlet works of 

19 Yellowtail Dam, including— 

20 (A) not more than 150,000 acre-feet per 

21 year of the allocation, which may be used in ad22 dition to the natural flow right described in ar23 ticle III(A)(1)(a) of the Compact; and 

24 (B) 150,000 acre-feet per year of the allo25 cation, which may be used only as supplemental 


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1 water for the natural flow right described in ar2 ticle III(A)(1)(a) of the Compact for use in 

3 times of natural flow shortage. 

4 (2) TREATMENT.— 

5 (A) IN GENERAL.—The allocation under 

6 paragraph (1) shall be considered to be part of 

7 the tribal water rights. 

8 (B) PRIORITY DATE.—The priority date of 

9 the allocation under paragraph (1) shall be the 

10 priority date of the water right held by the Bu11 reau of Reclamation. 

12 (C) ADMINISTRATION.— 

13 (i) IN GENERAL.—The Tribe shall ad14 minister the water allocated under para15 graph (1) in accordance with the Compact. 

16 (ii) TEMPORARY TRANSFER.—In ac17 cordance with subsection (c), the Tribe 

18 may temporarily transfer by service con19 tract, lease, exchange, or other agreement, 

20 not more than 50,000 acre-feet of water 

21 allocated under paragraph (1)(A) off the 

22 Reservation, subject to the approval of the 

23 Secretary and the requirements of the 

24 Compact. 

25 (b) ALLOCATION AGREEMENT.— 


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1 (1) IN GENERAL.—As a condition of receiving 

2 an allocation under this section, the Tribe shall 

3 enter into an allocation agreement with the Sec4 retary to establish the terms and conditions of the 

5 allocation, in accordance with the terms and condi6 tions of the Compact and this Act. 

7 (2) INCLUSIONS.—The allocation agreement 

8 under paragraph (1) shall include, among other 

9 things, a provision that— 

10 (A) it is without limit as to term; 

11 (B) the Tribe, and not the United States, 

12 shall be entitled to all consideration due to the 

13 Tribe under any lease, contract, or agreement 

14 the Tribe may enter into pursuant to the au15 thority in subsection (c); 

16 (C) the United States shall have no trust 

17 obligation or other obligation to monitor, ad18 minister, or account for— 

19 (i) any funds received by the Tribe as 

20 consideration under any lease, contract, or 

21 agreement the Tribe may enter into pursu22 ant to the authority in subsection (c); or 

23 (ii) the expenditure of such funds; 

24 (D) if the facilities at Yellowtail Dam are 

25 significantly reduced or are anticipated to be 


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1 significantly reduced for an extended period of 

2 time, the Tribe shall have the same storage 

3 rights as other storage contractors with respect 

4 to the allocation under this section; 

5 (E) the costs associated with the construc6 tion of the storage facilities at Yellowtail Dam 

7 allocable to the Tribe— 

8 (i) shall be nonreimbursable; and 

9 (ii) shall be excluded from any repay10 ment obligation of the Tribe; and 

11 (F) no water service capital charges shall 

12 be due or payable for any water allocated to the 

13 Tribe pursuant to this Act and the allocation 

14 agreement, regardless of whether that water is 

15 delivered for use by the Tribe or is delivered 

16 under any leases, contracts, or agreements the 

17 Tribe may enter into pursuant to the authority 

18 in subsection (c). 

19 (c) TEMPORARY TRANSFER FOR USE OFF RESERVA20 TION.— 

21 (1) IN GENERAL.—Notwithstanding any other 

22 provision of statutory or common law, subject to 

23 paragraph (2), on approval of the Secretary and 

24 subject to the terms and conditions of the Compact, 

25 the Tribe may enter into a service contract, lease, 


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1 exchange, or other agreement providing for the tem2 porary delivery, use, or transfer of not more than 

3 50,000 acre-feet per year of water allocated under 

4 subsection (a)(1)(A) for use off the Reservation. 

5 (2) REQUIREMENT.—An agreement under para6 graph (1) shall not permanently alienate any portion 

7 of the water allocated under subsection (a)(1)(A). 

8 (d) REMAINING STORAGE.— 

9 (1) IN GENERAL.—Upon the date of enactment 

10 of this Act, water in Bighorn Lake shall be consid11 ered to be fully allocated and no further storage allo12 cations shall be made by the Secretary. 

13 (2) EFFECT OF SUBSECTION.—Nothing in this 

14 subsection prevents the Secretary from renewing the 

15 storage contract with Pennsylvania Power and Light 

16 Company consistent with the allocation to Pennsyl17 vania Power and Light Company in existence on the 

18 date of enactment of this Act, or entering into fu19 ture agreements with the Northern Cheyenne or 

20 Crow Tribes facilitating the Northern Cheyenne and 

21 Crow Tribes’ use of their allocations of water from 

22 Bighorn Lake. 

23 SEC. 9. SATISFACTION OF CLAIMS. 

24 (a) IN GENERAL.—The benefits provided to the Tribe 

25 and the allottees under the Compact and this Act shall 


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1 be considered to completely satisfy all claims of the Tribe 

2 and the allottees waived and released pursuant to section 

3 10. 

4 (b) NO RECOGNITION OF WATER RIGHTS.—Notwith5 standing subsection (a) and except as provided in section 

6 7(d), nothing in this Act recognizes or establishes any 

7 right of a member of the Tribe or an allottee to water 

8 within the Reservation or the ceded strip. 

9 SEC. 10. WAIVERS AND RELEASES OF CLAIMS. 

10 (a) IN GENERAL.— 

11 (1) CLAIMS FOR WATER RIGHTS BY THE TRIBE

12 ON BEHALF OF ITSELF AND ITS MEMBERS (BUT NOT

13 ITS MEMBERS IN THEIR CAPACITIES AS ALLOTTEES)

14 AND BY THE UNITED STATES ON BEHALF OF THE

15 TRIBE AND ITS MEMBERS (BUT NOT MEMBERS IN

16 THEIR CAPACITIES AS ALLOTTEES).—Subject to the 

17 retention of rights set forth in subsection (c), as 

18 consideration for the benefits granted under the 

19 Compact and this Act, the Tribe, on behalf of the 

20 Tribe and tribal members (but not tribal members 

21 in their capacities as allottees) is authorized, and the 

22 United States, on behalf of the Tribe and its mem23 bers (but not members in their capacities as 

24 allottees), is authorized and directed, to execute a 

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1 cluding claims based on aboriginal title, within the 

2 State arising from time immemorial up to and in3 cluding the enforceability date, except to the extent 

4 that such claims are recognized in the Compact or 

5 this Act. 

6 (2) CLAIMS FOR WATER RIGHTS BY THE

7 UNITED STATES ON BEHALF OF ALLOTTEES.—Sub8 ject to the retention of rights set forth in subsection 

9 (c), the United States on behalf of allottees, as con10 sideration for the benefits granted under the Com11 pact and this Act, is authorized and directed to exe12 cute a waiver and release of any claims for water 

13 rights, including claims based on aboriginal title, 

14 within the Reservation and the ceded strip arising 

15 from time immemorial and, thereafter, forever, ex16 cept to the extent that such claims are recognized in 

17 the Compact or this Act. 

18 (3) WAIVER AND RELEASE OF CLAIMS AGAINST

19 THE UNITED STATES.—Subject to the retention of 

20 rights set forth in subsection (c), the Tribe, on be21 half of the Tribe and tribal members (but not mem22 bers in their capacities as allottees), as consideration 

23 for the benefits granted under the Compact and this 

24 Act, is authorized to execute a waiver and release of 

25 any claims against the United States (or agencies, 


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1 or employees of the United States) under Federal, 

2 State, or other law for— 

3 (A) all claims that the Tribe may have 

4 against the United States, its agencies, or em5 ployees, arising out of, resulting from, or relat6 ing in any manner to claims for water rights in 

7 the State that the United States acting in its 

8 capacity as trustee for the Tribe asserted, or 

9 could have asserted, in any court proceeding at 

10 any time up to and including the date of enact11 ment of this Act; 

12 (B) all claims relating to damages, losses, 

13 injuries to water, land, or other trust resources 

14 due to loss of water or water rights, including 

15 claims of interference with, diversion or taking 

16 of water, or claims relating to failure to protect, 

17 acquire, replace, or develop water or water 

18 rights within the State of Montana that accrued 

19 at any time up to and including the date of en20 actment of this Act and that the Tribe asserted 

21 or could have asserted in any court against the 

22 United States, its agencies, or employees; 

23 (C) all claims arising out of, resulting from 

24 or relating in any manner to the litigation of 

25 claims relating to the Tribe’s water rights in 


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1 the State that accrued at any time up to and 

2 including the date of enactment of this Act; and 

3 (D) all claims arising out of, resulting 

4 from, or relating in any manner to the negotia5 tion, execution, or the adoption of the Compact 

6 or the Act at any time up to and including the 

7 date of enactment of this Act. 

8 (b) EFFECTIVENESS OF WAIVERS AND RELEASES.— 

9 The waivers under subsection (a) shall take effect on the 

10 enforceability date. 

11 (c) RETENTION OF RIGHTS.—Notwithstanding any 

12 other provision of this Act or the Compact, the Tribe, on 

13 behalf of itself and tribal members (but not members in 

14 their capacities as allottees), and the United States, acting 

15 as trustee for the Tribe, tribal members, and the allottees, 

16 retain the right to assert— 

17 (1) claims for enforcement of the Compact, this 

18 Act, and any judgment and decree issued by any 

19 court of appropriate jurisdiction in connection with 

20 the approval of the Compact or this Act; 

21 (2) claims for enforcement of any water rights 

22 acquired after the date of enactment of this Act; 

23 (3) any and all claims relating to activities af24 fecting the quality of water; 


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1 (4) any objections to any claims for water 

2 rights under State law by or for any parties in the 

3 Montana statewide adjudication of water rights 

4 under title 85 of part 2, Montana Code Annotated 

5 (2007); and 

6 (5) claims for all rights, privileges, immunities, 

7 and powers not specifically waived and released pur8 suant to subsection (a) or article VII(E) of the Com9 pact. 

10 (d) EFFECT OF COMPACT AND ACT.—Nothing in the 

11 Compact or this Act— 

12 (1) affects the authority of the United States, 

13 acting in a sovereign capacity, to carry out any other 

14 Federal law (including regulations), including laws 

15 relating to health, safety, or the environment, such 

16 as— 

17 (A) the Federal Water Pollution Control 

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

19 (B) the Safe Drinking Water Act (42 

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

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

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

24 (D) the Solid Waste Disposal Act (42 

25 U.S.C. 6901 et seq.) (commonly known as the 


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1 ‘‘Resource Conservation and Recovery Act of 

2 1976’’); 

3 (2) affects the authority of the United States to 

4 carry out any activity as a trustee for any Indian 

5 tribe other than the Tribe (or for any allottee of 

6 such an Indian tribe); or 

7 (3) confers on any State court jurisdiction— 

8 (A) to enforce Federal environmental law 

9 regarding the duties of the United States; or 

10 (B) to conduct judicial review of any Fed11 eral agency action. 

12 (e) ENFORCEABILITY DATE.— 

13 (1) IN GENERAL.—The enforceability date shall 

14 be the date on which the Secretary publishes in the 

15 Federal Register a statement of findings that— 

16 (A) the Montana Water Court has issued 

17 a final judgment and decree approving the 

18 Compact, or if the Montana Water Court is 

19 found to lack jurisdiction, the United States 

20 District Court of jurisdiction has approved the 

21 Compact as a consent decree and such approval 

22 is final; 

23 (B) $44,000,000 has been deposited in the 

24 Crow Settlement Fund; 


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1 (C) the Secretary has fulfilled his obliga2 tions to negotiate an agreement with the Tribe 

3 in accordance with sections 5(a) and 6(a); 

4 (D) the State has appropriated and paid 

5 into an interest-bearing escrow account any 

6 payments then due to the Tribe under the Com7 pact; 

8 (E) the Tribe has ratified the Compact by 

9 submitting the Act and the Compact to a vote 

10 by the tribal membership for approval or dis11 approval and the tribal membership has voted 

12 to approve the Act and the Compact by a ma13 jority of votes cast on the day of the vote, as 

14 certified by the Secretary and the Tribe; and 

15 (F) the Secretary has fulfilled the require16 ments of section 8(a). 

17 (f) FAILURE OF ENFORCEABILITY DATE TO

18 OCCUR.—If, because of the failure the enforceability date 

19 to occur by December 31, 2014, this section does not be20 come effective, the Tribe, tribal members, and allottees, 

21 and the United States on behalf of the Tribe, tribal mem22 bers, and allottees, shall retain the right to assert any and 

23 all claims for water within the State of Montana. 

24 (g) TOLLING OF CLAIMS.— 


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

2 limitation and time-based equitable defense relating 

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

4 the period beginning on the date of enactment of 

5 this Act and ending on the date on which the 

6 amounts authorized to be appropriated to carry out 

7 this Act are appropriated. 

8 (2) EFFECT OF SUBSECTION.—Nothing in this 

9 subsection revives any claim or tolls any period of 

10 limitation or time-based equitable defense that ex11 pired before the date of enactment of this Act. 

12 SEC. 11. CROW SETTLEMENT FUND. 

13 (a) ESTABLISHMENT.—There is established in the 

14 Treasury of the United States the Crow Settlement Fund, 

15 consisting of such amounts as are deposited in the fund 

16 under subsections (c) through (h) of section 14. 

17 (b) ACCOUNTS OF CROW SETTLEMENT FUND.—The 

18 Secretary shall establish in the Crow Settlement Fund the 

19 following accounts: 

20 (1) The Tribal Compact Administration ac21 count, consisting of amounts authorized pursuant to 

22 section 14(c). 

23 (2) The Economic Development account, con24 sisting of authorized pursuant to section 14(d). 


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1 (3) The Water Development Projects account, 

2 consisting of authorized pursuant to section 14(e). 

3 (4) The MR&I System OM&R account, con4 sisting of authorized pursuant to section 14(f). 

5 (5) The Yellowtail Dam OM&R account, con6 sisting of amounts authorized pursuant to section 

7 14(g). 

8 (6) The CIP OM&R account, consisting of au9 thorized pursuant to section 14(h). 

10 (c) DEPOSITS TO CROW SETTLEMENT FUND.— 

11 (1) IN GENERAL.—The Secretary of the Treas12 ury shall promptly deposit in the Crow Settlement 

13 Fund any amounts appropriated for that purpose. 

14 (2) DEPOSITS TO ACCOUNTS.—The Secretary of 

15 the Treasury shall deposit amounts in the accounts 

16 of the Crow Settlement Fund established under sub17 section (b) in descending order of priority, with 

18 highest priority given to the Tribal Compact Admin19 istration account established under subsection 

20 (b)(1). 

21 (d) MANAGEMENT.— 

22 (1) IN GENERAL.—The Secretary shall manage 

23 the Crow Settlement Fund, make investments from 

24 the Crow Settlement Fund, and make monies avail25 able from the Crow Settlement Fund for distribution 


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1 to the Tribe consistent with the American Indian 

2 Trust Fund Management Reform Act of 1994 (25 

3 U.S.C. 4001 et seq.) (referred to in this subsection 

4 as the ‘‘Trust Fund Reform Act’’). 

5 (2) INVESTMENT OF CROW SETTLEMENT

6 FUND.—The Secretary shall invest amounts in the 

7 Crow Settlement Fund in accordance with— 

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

9 161); 

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

11 1938 (25 U.S.C. 162a); 

12 (C) the obligations of Federal corporations 

13 and Federal Government-sponsored entities the 

14 charter documents of which provide that the ob15 ligations of the entities are lawful investments 

16 for federally managed funds, including— 

17 (i) the obligations of the United 

18 States Postal Service described in section 

19 2005 of title 39, United States Code; 

20 (ii) bonds and other obligations of the 

21 Tennessee Valley Authority described in 

22 section 15d of the Tennessee Valley Au23 thority Act of 1933 (16 U.S.C. 831n–4); 

24 (iii) mortgages, obligations, and other 

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1 gage Corporation described in section 303 

2 of the Federal Home Loan Mortgage Cor3 poration Act (12 U.S.C. 1452); and 

4 (iv) bonds, notes, and debentures of 

5 the Commodity Credit Corporation de6 scribed in section 4 of the Act of March 8, 

7 1938 (15 U.S.C. 713a–4); and 

8 (D) the obligations referred to in section 

9 201 of the Social Security Act (42 U.S.C. 401). 

10 (3) DISTRIBUTIONS FROM CROW SETTLEMENT

11 FUND.—The Secretary shall disburse funds from the 

12 Crow Settlement Fund in accordance with this sec13 tion, as follows: 

14 (A) TRIBAL COMPACT ADMINISTRATION

15 ACCOUNT.—The Secretary shall make expendi16 tures from this account for expenditures by the 

17 Tribe for Tribal Compact Administration, upon 

18 request by the Tribe for an expenditure in19 cluded in the definition of Tribal Compact Ad20 ministration. 

21 (B) ECONOMIC DEVELOPMENT AC22 COUNT.—The Secretary shall disburse funds 

23 from this account to the Tribe upon the Tribe’s 

24 presentation of an economic development 

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1 ture included in the definition of Economic De2 velopment. 

3 (C) WATER DEVELOPMENT PROJECT AC4 COUNT.—The Secretary shall disburse funds 

5 from this account to the Tribe upon the Tribe’s 

6 presentation of a request for funding for a 

7 project included in the definition of Water De8 velopment Project. 

9 (D) YELLOWTAIL DAM OM&R ACCOUNT.— 

10 The Secretary shall expend interest accrued on 

11 the funds from this account in the prior fiscal 

12 year for Yellowtail Dam OM&R costs in the 

13 subsequent year. The interest expended by the 

14 Secretary shall be used to reduce the Yellowtail 

15 Dam OM&R costs to all tribal water users on 

16 a pro rata basis for that year. 

17 (E) CIP OM&R ACCOUNT.—The Secretary 

18 shall expend interest accrued on the funds from 

19 this account in the prior fiscal year for CIP 

20 OM&R costs in the subsequent year. The inter21 est expended by the Secretary shall be used to 

22 reduce the CIP OM&R costs to all tribal water 

23 users on a pro rata basis for that year. 

24 (4) WITHDRAWALS BY TRIBE.— 


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1 (A) IN GENERAL.—The Tribe may with2 draw any portion of amounts in the Crow Set3 tlement Fund on approval by the Secretary of 

4 a tribal management plan in accordance with 

5 the Trust Fund Reform Act. 

6 (B) REQUIREMENTS.— 

7 (i) IN GENERAL.—In addition to the 

8 requirements under the Trust Fund Re9 form Act, the tribal management plan of 

10 the Tribe under subparagraph (A) shall re11 quire that the Tribe spend any amounts 

12 withdrawn from the Crow Settlement Fund 

13 in accordance with this Act. 

14 (ii) ENFORCEMENT.—The Secretary 

15 may carry out such judicial or administra16 tive actions as the Secretary determines to 

17 be necessary to enforce a tribal manage18 ment plan to ensure that amounts with19 drawn by the Tribe from the Crow Settle20 ment Fund under this paragraph are used 

21 in accordance with this Act. 

22 (C) LIABILITY.—The Secretary and the 

23 Secretary of the Treasury shall not be liable for 

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1 drawn from the Crow Settlement Fund by the 

2 Tribe under this paragraph. 

3 (D) EXPENDITURE PLAN.— 

4 (i) IN GENERAL.—For each fiscal 

5 year, the Tribe shall submit to the Sec6 retary for approval an expenditure plan for 

7 any portion of the amounts described in 

8 subparagraph (A) that the Tribe elects not 

9 to withdraw under this paragraph during 

10 the fiscal year. 

11 (ii) INCLUSION.—An expenditure plan 

12 under clause (i) shall include a description 

13 of the manner in which, and the purposes 

14 for which, funds of the Tribe remaining in 

15 the Crow Settlement Fund will be used 

16 during subsequent fiscal years. 

17 (iii) APPROVAL.—On receipt of an ex18 penditure plan under clause (i), the Sec19 retary shall approve the plan if the Sec20 retary determines that the plan is— 

21 (I) reasonable; and 

22 (II) consistent with this Act. 

23 (5) ANNUAL REPORTS.—The Tribe shall submit 

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1 penditure by the Tribe of amounts in the Crow Set2 tlement Fund during the preceding calendar year. 

3 (6) CERTAIN PER CAPITA DISTRIBUTIONS PRO4 HIBITED.—No amount in the Crow Settlement Fund 

5 shall be distributed to any member of the Tribe on 

6 a per capita basis. 

7 (e) AVAILABILITY.—The amounts in the Crow Settle8 ment Fund shall be available for use by the Secretary and 

9 withdrawal by the Tribe beginning on the enforceability 

10 date. 

11 (f) STATE CONTRIBUTION.—The State contribution 

12 shall be provided in accordance with article VI(A) of the 

13 Compact. 

14 SEC. 12. YELLOWTAIL DAM, MONTANA. 

15 (a) STREAMFLOW AND LAKE LEVEL MANAGEMENT

16 PLAN.— 

17 (1) In accordance with Federal approval of the 

18 Compact, the Secretary is not limited from exer19 cising discretion as provided in section 4F of the 

20 Streamflow and Lake Level Management Plan re21 ferred to in and part of the Compact. 

22 (2) Bighorn Lake water management, including 

23 the Streamflow and Lake Level Management Plan, 

24 is a Federal activity and review and enforcement of 


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1 any water management decisions shall be as pro2 vided by Federal law. 

3 (3) The Streamflow and Lake Level Manage4 ment Plan referred to in and part of the Compact 

5 shall be interpreted to clearly reflect paragraphs (1) 

6 and (2). 

7 (b) POWER GENERATION.— 

8 (1) Notwithstanding any other provision of law, 

9 the Tribe shall have the exclusive right to develop 

10 and market power generation as a water develop11 ment project on the Yellowtail Afterbay Dam. 

12 (2) The Bureau of Reclamation shall cooperate 

13 with the Tribe on such project. 

14 (3) Any hydroelectric power generated under 

15 this provision shall be used or marketed by the 

16 Tribe. 

17 (4) The Tribe shall retain any revenues from 

18 the sale of hydroelectric power generated under this 

19 provision. 

20 (5) The United States shall have no trust obli21 gation to monitor, administer, or account for the 

22 revenues received by the Tribe, or the expenditure of 

23 the revenues. 

24 (c) CONSULTATION WITH TRIBE.—The Bureau of 

25 Reclamation shall consult with the Tribe on at least a 


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1 quarterly basis on all issues relating to the Bureau’s man2 agement of Yellowtail Dam. 

3 SEC. 13. MISCELLANEOUS PROVISIONS. 

4 (a) WAIVER OF SOVEREIGN IMMUNITY BY THE

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

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

7 Appropriation Act, 1953 (43 U.S.C. 666), nothing in this 

8 Act waives the sovereign immunity of the United States. 

9 (b) OTHER TRIBES NOT ADVERSELY AFFECTED.— 

10 Nothing in this Act quantifies or diminishes any land or 

11 water right, 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 or the 

16 ceded strip— 

17 (1) the United States shall not submit against 

18 any Indian-owned land located within the Reserva19 tion or the ceded strip any claim for reimbursement 

20 of the cost to the United States of carrying out this 

21 Act and the Compact; and 

22 (2) no assessment of any Indian-owned land lo23 cated within the Reservation or the ceded strip shall 

24 be made regarding that cost. 


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1 (d) LIMITATION ON LIABILITY OF UNITED

2 STATES.— 

3 (1) IN GENERAL.—The United States has no 

4 trust or other obligation— 

5 (A) to monitor, administer, or account for, 

6 in any manner, any funds provided to the Tribe 

7 by any party to the Compact other than the 

8 United States; or 

9 (B) to review or approve any expenditure 

10 of those funds. 

11 (2) INDEMNIFICATION.—The Tribe shall indem12 nify the United States, and hold the United States 

13 harmless, with respect to all claims (including claims 

14 for takings or breach of trust) arising from the re15 ceipt or expenditure of amounts described in para16 graph (1)(A). 

17 (e) EFFECT ON CURRENT LAW.—Nothing in this sec18 tion affects any provision of law (including regulations) 

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

20 Act with respect to preenforcement review of any Federal 

21 environmental enforcement action. 

22 SEC. 14. AUTHORIZATION OF APPROPRIATIONS. 

23 (a) REHABILITATION AND IMPROVEMENT OF CROW

24 IRRIGATION PROJECT.—There is authorized to be appro25 priated $160,653,000, adjusted to reflect changes since 


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1 May 1, 2008, under section 5(d) for the rehabilitation and 

2 improvement of the Crow Irrigation Project. 

3 (b) DESIGN AND CONSTRUCTION OF MR&I SYS4 TEM.—There is authorized to be appropriated 

5 $200,840,000, adjusted to reflect changes since May 1, 

6 2008, under section 6(d) for the design and construction 

7 of the MR&I System. 

8 (c) TRIBAL COMPACT ADMINISTRATION.—There is 

9 authorized to be appropriated $4,000,000 for Tribal Com10 pact Administration. 

11 (d) ECONOMIC DEVELOPMENT PROJECTS.—There is 

12 authorized to be appropriated $40,000,000 for Economic 

13 Development Projects. 

14 (e) WATER DEVELOPMENT PROJECTS.—There is au15 thorized to be appropriated $37,594,000 (as adjusted to 

16 reflect changes during the period beginning on May 1, 

17 2008, and ending on the date of appropriation) for Water 

18 Development Projects. 

19 (f) MR&I SYSTEM OM&R.—There is authorized to 

20 be appropriated $40,513,000 (as adjusted to reflect 

21 changes during the period beginning on May 1, 2008, and 

22 ending on the date of appropriation) for MR&I OM&R. 

23 (g) YELLOWTAIL DAM OM&R.—There is authorized 

24 to be appropriated $30,876,000 (as adjusted to reflect 

25 changes during the period beginning on May 1, 2008, and 


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1 ending on the date of appropriation) for Yellowtail Dam 

2 OM&R. 

3 (h) CIP OM&R.—There is authorized to be appro4 priated $12,736,000 (as adjusted to reflect changes dur5 ing the period beginning on May 1, 2008, and ending on 

6 the date of appropriation) for CIP OM&R. 

7 (i) ENVIRONMENTAL COMPLIANCE.—There are au8 thorized to be appropriated such sums as are necessary 

9 to carry out all necessary environmental compliance activi10 ties undertaken by the Secretary associated with the Com11 pact and this Act. 

12 (j) BUREAU OF RECLAMATION COSTS FOR CROW IR13 RIGATION PROJECT.—There are authorized to be appro14 priated such sums as are necessary for the Bureau of Rec15 lamation to carry out its role as lead agency for the reha16 bilitation and improvement of the Crow Irrigation Project. 

17 (k) BUREAU OF RECLAMATION COSTS FOR MR&I 

18 SYSTEM.—There are authorized to be appropriated such 

19 sums as are necessary for the Bureau of Reclamation to 

20 carry out its role as lead agency for the design and con21 struction of the MR&I System. 

22 SEC. 15. REPEAL ON FAILURE TO MEET EFFECTIVE DATE. 

23 If the Secretary does not publish a statement of find24 ings under section 10(e) by December 31, 2014— 


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1 (1) this Act is repealed effective January 1, 

2 2015, and any action taken by the Secretary and 

3 any contract or agreement pursuant to the authority 

4 provided under any provision of this Act shall be 

5 void; 

6 (2) any amounts appropriated under section 14, 

7 together with any interest on those amounts, shall 

8 immediately revert to the general fund of the Treas9 ury; and 

10 (3) any amounts made available under section 

11 14 that remain unexpended shall immediately revert 

12 to the general fund of the Treasury. 

Æ 


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