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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 462 Reported in Senate (RS)]

                                                       Calendar No. 872
110th CONGRESS
  2d Session
                                 S. 462

                          [Report No. 110-415]

 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 SENATE OF THE UNITED STATES

                            January 31, 2007

Mr. Reid (for himself, Mr. Ensign, Mr. Craig, and Mr. Crapo) introduced 
the following bill; which was read twice and referred to the Committee 
                           on Indian Affairs

                July 10 (legislative day, July 9), 2008

               Reported by Mr. Dorgan, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Shoshone-Paiute Tribes of 
Duck Valley Water Rights Settlement Act''.</DELETED>

<DELETED>SEC. 2. FINDINGS.</DELETED>

<DELETED>    Congress finds that--</DELETED>
        <DELETED>    (1) it is the policy of the United States, in 
        accordance with the trust responsibility of the United States 
        to Indian tribes, to promote Indian self-determination and 
        economic self-sufficiency and to settle Indian water rights 
        claims without lengthy and costly litigation, if 
        practicable;</DELETED>
        <DELETED>    (2) quantifying rights to water and development of 
        facilities needed to use tribal water supplies is essential to 
        the development of viable Indian reservation economies and the 
        establishment of a permanent reservation homeland;</DELETED>
        <DELETED>    (3) uncertainty concerning the extent of the right 
        to water of the Shoshone-Paiute Tribes has limited the access 
        of the Tribes to water and financial resources necessary to 
        achieve self-determination and self-sufficiency;</DELETED>
        <DELETED>    (4) in 2006, the Tribes, the State of Idaho, the 
        affected individual water users, and the United States resolved 
        all tribal claims to water rights in the Snake River Basin 
        Adjudication through a consent decree entered by the District 
        Court of the Fifth Judicial District of the State of Idaho, 
        requiring no further Federal action to implement the Tribes' 
        water rights in the State of Idaho;</DELETED>
        <DELETED>    (5) as of the date of enactment of this Act, 
        proceedings to determine the extent and nature of the water 
        rights of the Tribes are pending before the Nevada State 
        Engineer;</DELETED>
        <DELETED>    (6) final resolution through litigation of the 
        water claims of the Tribes will--</DELETED>
                <DELETED>    (A) take many years;</DELETED>
                <DELETED>    (B) entail great expense;</DELETED>
                <DELETED>    (C) continue to limit the access of the 
                Tribes to water, with economic and social 
                consequences;</DELETED>
                <DELETED>    (D) prolong uncertainty relating to the 
                availability of water supplies; and</DELETED>
                <DELETED>    (E) seriously impair long-term economic 
                planning and development for all parties to the 
                litigation;</DELETED>
        <DELETED>    (7) after many years of negotiation, the United 
        States, the Tribes, the State, and the upstream water users 
        have entered into a settlement agreement to resolve permanently 
        all water rights of the Tribes in the State; and</DELETED>
        <DELETED>    (8) the Tribes have certain water-related claims 
        for damages against the United States.</DELETED>

<DELETED>SEC. 3. PURPOSES.</DELETED>

<DELETED>    The purposes of this Act are--</DELETED>
        <DELETED>    (1) to resolve outstanding issues with respect to 
        the East Fork of the Owyhee River in the State in such a manner 
        as to provide important benefits to--</DELETED>
                <DELETED>    (A) the United States;</DELETED>
                <DELETED>    (B) the State;</DELETED>
                <DELETED>    (C) the Tribes; and</DELETED>
                <DELETED>    (D) the upstream water users;</DELETED>
        <DELETED>    (2) to achieve a fair, equitable, and final 
        settlement of all claims of the Tribes, members of the Tribes, 
        and the United States on behalf of the Tribes to the East Fork 
        of the Owyhee River in the State;</DELETED>
        <DELETED>    (3) to ratify and provide for the enforcement of 
        the Agreement among the parties to the litigation;</DELETED>
        <DELETED>    (4) to resolve the Tribes' water-related claims 
        for damages against the United States;</DELETED>
        <DELETED>    (5) to require the Secretary to perform all 
        obligations of the Secretary under the Agreement and this Act; 
        and</DELETED>
        <DELETED>    (6) to authorize the actions and appropriations 
        necessary for the United States to meet the obligations of the 
        United States under the Agreement and this Act.</DELETED>

<DELETED>SEC. 4. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Agreement.--The term ``Agreement'' means the 
        agreement entitled the ``Agreement to Establish the Relative 
        Water Rights of the Shoshone-Paiute Tribes of the Duck Valley 
        Indian Reservation and the Upstream Water Users, East Fork 
        Owyhee River'' (including all attachments to that 
        agreement).</DELETED>
        <DELETED>    (2) Development fund.--The term ``Development 
        Fund'' means the Shoshone-Paiute Tribes Water Rights 
        Development Fund established by section 7(b)(1).</DELETED>
        <DELETED>    (3) East fork of the owyhee river.--The term 
        ``East Fork of the Owyhee River'' means the portion of the east 
        fork of the Owyhee River that is located in the 
        State.</DELETED>
        <DELETED>    (4) Maintenance fund.--The term ``Maintenance 
        Fund'' means the Shoshone-Paiute Tribes Operation and 
        Maintenance Fund established by section 7(c)(1).</DELETED>
        <DELETED>    (5) Secretary.--The term ``Secretary'' means the 
        Secretary of the Interior.</DELETED>
        <DELETED>    (6) State.--The term ``State'' means the State of 
        Nevada.</DELETED>
        <DELETED>    (7) Tribal water right.--The term ``tribal water 
        right'' means a right of the Tribes described in the Agreement 
        relating to water, including groundwater, storage water, and 
        surface water.</DELETED>
        <DELETED>    (8) Tribes.--The term ``Tribes'' means the 
        Shoshone-Paiute Tribes of the Duck Valley Indian 
        Reservation.</DELETED>
        <DELETED>    (9) Upstream water user.--The term ``upstream 
        water user'' means an individual water user that--</DELETED>
                <DELETED>    (A) is located upstream from the Duck 
                Valley Indian Reservation on the East Fork of the 
                Owyhee River; and</DELETED>
                <DELETED>    (B) is a signatory to the 
                Agreement.</DELETED>

<DELETED>SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF 
              AGREEMENT.</DELETED>

<DELETED>    (a) In General.--Except as provided in section 1f of 
article III of the Agreement, and except to the extent that the 
Agreement otherwise conflicts with this Act, the Agreement is approved, 
ratified, and confirmed.</DELETED>
<DELETED>    (b) Performance of Obligations.--The Secretary and any 
other head of a Federal agency obligated under the Agreement shall 
perform any action necessary to carry out an obligation under the 
Agreement in accordance with this Act.</DELETED>

<DELETED>SEC. 6. TRIBAL WATER RIGHTS.</DELETED>

<DELETED>    (a) In General.--The Secretary shall hold the tribal water 
rights in trust on behalf of the United States for the benefit of the 
Tribes.</DELETED>
<DELETED>    (b) Administration.--</DELETED>
        <DELETED>    (1) Enactment of water code.--Not later than 3 
        years after the date of enactment of this Act, the Tribes shall 
        enact a water code to administer tribal water rights.</DELETED>
        <DELETED>    (2) Interim administration.--The Secretary shall 
        regulate the tribal water rights during the period beginning on 
        the date of enactment of this Act and ending on the date on 
        which the Tribes enact a water code under paragraph 
        (1).</DELETED>
<DELETED>    (c) Loss of Tribal Water Rights.--The tribal water rights 
shall not be subject to loss by abandonment, forfeiture, or 
nonuse.</DELETED>

<DELETED>SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS.</DELETED>

<DELETED>    (a) Definition of Funds.--In this section, the term 
``Funds'' means--</DELETED>
        <DELETED>    (1) the Development Fund; and</DELETED>
        <DELETED>    (2) the Maintenance Fund.</DELETED>
<DELETED>    (b) Development Fund.--</DELETED>
        <DELETED>    (1) Establishment.--There is established in the 
        Treasury of the United States a fund to be known as the 
        ``Shoshone-Paiute Tribes Water Rights Development 
        Fund''.</DELETED>
        <DELETED>    (2) Use of funds.--The Tribes shall use amounts in 
        the Development Fund--</DELETED>
                <DELETED>    (A) to pay or reimburse costs incurred by 
                the Tribes in acquiring land and water 
                rights;</DELETED>
                <DELETED>    (B) for purposes of cultural 
                preservation;</DELETED>
                <DELETED>    (C) to restore or improve fish or wildlife 
                habitat;</DELETED>
                <DELETED>    (D) for fish or wildlife production, water 
                resource development, agricultural development, 
                rehabilitation, and expansion of the Duck Valley 
                Irrigation Project;</DELETED>
                <DELETED>    (E) for water resource planning and 
                development; or</DELETED>
                <DELETED>    (F) to pay the costs of designing and 
                constructing water supply and sewer systems for tribal 
                communities, including--</DELETED>
                        <DELETED>    (i) a water quality testing 
                        laboratory;</DELETED>
                        <DELETED>    (ii) other appropriate water-
                        related projects and other related economic 
                        development projects;</DELETED>
                        <DELETED>    (iii) the development of a water 
                        code; and</DELETED>
                        <DELETED>    (iv) other costs of implementing 
                        the Agreement.</DELETED>
        <DELETED>    (3) Authorization of appropriations.--There is 
        authorized to be appropriated to the Secretary for deposit in 
        the Development Fund $9,000,000 for each of fiscal years 2008 
        through 2012.</DELETED>
<DELETED>    (c) Maintenance Fund.--</DELETED>
        <DELETED>    (1) Establishment.--There is established in the 
        Treasury of the United States a fund to be known as the 
        ``Shoshone-Paiute Tribes Operation and Maintenance 
        Fund''.</DELETED>
        <DELETED>    (2) Use of funds.--The Tribes shall use amounts in 
        the Maintenance Fund to pay or provide reimbursement for the 
        costs of--</DELETED>
                <DELETED>    (A) operation and maintenance of the Duck 
                Valley Irrigation Project and other water-related 
                projects funded under this Act; or</DELETED>
                <DELETED>    (B) water supply and sewer systems for 
                tribal communities, including the operation and 
                maintenance costs of a water quality testing 
                laboratory.</DELETED>
        <DELETED>    (3) Authorization of appropriations.--There is 
        authorized to be appropriated to the Secretary for deposit in 
        the Maintenance Fund $3,000,000 for each of fiscal years 2008 
        through 2012.</DELETED>
<DELETED>    (d) Administration of Funds.--</DELETED>
        <DELETED>    (1) In general.--The Secretary, in accordance with 
        the American Indian Trust Fund Management Reform Act of 1994 
        (25 U.S.C. 4001 et seq.), this Act, and the Agreement, shall 
        manage the Funds, including by investing amounts from the Funds 
        in accordance with--</DELETED>
                <DELETED>    (A) the Act of April 1, 1880 (25 U.S.C. 
                161); and</DELETED>
                <DELETED>    (B) the first section of the Act of June 
                24, 1938 (25 U.S.C. 162a).</DELETED>
        <DELETED>    (2) Distributions.--</DELETED>
                <DELETED>    (A) Withdrawals.--</DELETED>
                        <DELETED>    (i) In general.--During any fiscal 
                        year, the Tribes may withdraw amounts from the 
                        Funds if the Secretary approves a plan of the 
                        Tribes to withdraw amounts under section 202 of 
                        the American Indian Trust Fund Management 
                        Reform Act of 1994 (25 U.S.C. 4022).</DELETED>
                        <DELETED>    (ii) Plan to withdraw amounts.--
                        </DELETED>
                                <DELETED>    (I) Inclusion.--In 
                                addition to any information required 
                                under section 202 of the American 
                                Indian Trust Fund Management Reform Act 
                                of 1994 (25 U.S.C. 4022), a plan of the 
                                Tribes to withdraw amounts under this 
                                subparagraph shall include a 
                                requirement that the Tribes spend the 
                                amounts withdrawn from the Funds during 
                                a fiscal year for 1 or more uses 
                                described in subsection (b)(2) or 
                                (c)(2).</DELETED>
                                <DELETED>    (II) Enforcement.--The 
                                Secretary may take administrative or 
                                judicial action to enforce a plan of 
                                the Tribes to withdraw 
                                amounts.</DELETED>
                <DELETED>    (B) Remaining amounts.--</DELETED>
                        <DELETED>    (i) In general.--On approval of an 
                        expenditure plan submitted by the Tribes under 
                        clause (ii), the Secretary shall distribute to 
                        the Tribes amounts in the Funds not withdrawn 
                        by the Tribes during the preceding fiscal 
                        year.</DELETED>
                        <DELETED>    (ii) Expenditure plan.--</DELETED>
                                <DELETED>    (I) In general.--For each 
                                fiscal year, the Tribes shall submit to 
                                the Secretary for approval an 
                                expenditure plan for amounts described 
                                in clause (i).</DELETED>
                                <DELETED>    (II) Inclusions.--An 
                                expenditure plan under subclause (I) 
                                shall include--</DELETED>
                                        <DELETED>    (aa) an accounting 
                                        by the Tribes of any funds 
                                        withdrawn by the Tribes from 
                                        the Funds during the preceding 
                                        fiscal year, including a 
                                        description of any use by the 
                                        Tribes of the funds and the 
                                        amount remaining in the Funds 
                                        for the preceding fiscal year; 
                                        and</DELETED>
                                        <DELETED>    (bb) a description 
                                        of the means by which the 
                                        Tribes will use any amount 
                                        distributed under this 
                                        subparagraph.</DELETED>
                        <DELETED>    (iii) Approval.--The Secretary 
                        shall approve an expenditure plan under this 
                        subparagraph if the Secretary determines that 
                        the plan is--</DELETED>
                                <DELETED>    (I) reasonable; 
                                and</DELETED>
                                <DELETED>    (II) consistent with this 
                                Act and the Agreement.</DELETED>
                <DELETED>    (C) Limitations.--</DELETED>
                        <DELETED>    (i) Timing.--No amount from the 
                        Funds (including any interest income accruing 
                        to the Funds) shall be distributed until the 
                        waivers under section 8(a) take 
                        effect.</DELETED>
                        <DELETED>    (ii) No per capita 
                        distributions.--No amount from the Funds 
                        (including any interest income accruing to the 
                        Funds) shall be distributed to a member of the 
                        Tribes on a per capita basis.</DELETED>
        <DELETED>    (3) Funding agreement.--Notwithstanding any other 
        provision of this Act, on receipt of a request from the Tribes, 
        the Secretary shall include an amount appropriated under this 
        subsection in the funding agreement of the Tribes under title 
        IV of the Indian Self-Determination and Education Assistance 
        Act (25 U.S.C. 458aa et seq.), for use in accordance with 
        subsections (b)(2) and (c)(2).</DELETED>
        <DELETED>    (4) Liability.--The Secretary and the Secretary of 
        the Treasury shall not retain any liability for the expenditure 
        or investment of amounts distributed to the Tribes under this 
        subsection.</DELETED>
        <DELETED>    (5) Capital costs nonreimbursable.--The capital 
        costs associated with the Duck Valley Indian Irrigation Project 
        as of the date of enactment of this Act, including any capital 
        cost incurred with funds distributed under this subsection for 
        that project, shall be permanently nonreimbursable.</DELETED>

<DELETED>SEC. 8. TRIBAL WAIVER OF CLAIMS.</DELETED>

<DELETED>    (a) Waivers.--</DELETED>
        <DELETED>    (1) In general.--Except as otherwise provided in 
        the Agreement and this Act, the Tribes, and the United States 
        on behalf of the Tribes, waive and release--</DELETED>
                <DELETED>    (A) all claims to water in the East Fork 
                of the Owyhee River and all claims to injury relating 
                to that water; and</DELETED>
                <DELETED>    (B) all claims against the State, any 
                agency or political subdivision of the State, or any 
                person, entity, or corporation relating to injury to a 
                right of the Tribe under any Executive order entered on 
                behalf of the Tribes, to the extent that the injury--
                </DELETED>
                        <DELETED>    (i) resulted from a flow 
                        modification or a reduction in the quantity of 
                        water available; and</DELETED>
                        <DELETED>    (ii) accrued on or before the 
                        effective date of the Agreement.</DELETED>
        <DELETED>    (2) Enforcement of waivers.--A waiver of a claim 
        under this subsection by the Tribes, or the United States on 
        behalf of the Tribes, shall be enforceable in the appropriate 
        forum.</DELETED>
        <DELETED>    (3) Effective date.--A waiver by the Tribes, or 
        the United States on behalf of the Tribes, of a claim under 
        this subsection shall take effect on the date on which the 
        Secretary publishes in the Federal Register a statement of 
        findings that includes a finding that--</DELETED>
                <DELETED>    (A) all parties to the Agreement have 
                executed the Agreement;</DELETED>
                <DELETED>    (B) a decree acceptable to each party to 
                the Agreement has been entered by the Fourth Judicial 
                District Court, Elko County, Nevada; and</DELETED>
                <DELETED>    (C) the Agreement has been ratified under 
                section 5(a).</DELETED>
<DELETED>    (b) Waiver and Release of Claims Against the United 
States.--</DELETED>
        <DELETED>    (1) In general.--In consideration of performance 
        by the United States of all actions required by the Agreement 
        and this Act, including the authorization of appropriations 
        under subsections (b)(3) and (c)(3) of section 7, the Tribe 
        shall execute a waiver and release of any claim against the 
        United States for--</DELETED>
                <DELETED>    (A) a water right in the East Fork of the 
                Owyhee River;</DELETED>
                <DELETED>    (B) an injury to a right described in 
                subparagraph (A);</DELETED>
                <DELETED>    (C) breach of trust--</DELETED>
                        <DELETED>    (i) for failure to protect, 
                        acquire, or develop a water right that accrued 
                        on or before the effective date of a waiver 
                        under this subsection; or</DELETED>
                        <DELETED>    (ii) arising out of the 
                        negotiation or adoption of the Agreement; 
                        or</DELETED>
                <DELETED>    (D) a fishing right under any Executive 
                order, to the extent that an injury to such a right--
                </DELETED>
                        <DELETED>    (i) resulted from a reduction in 
                        the quantity of water available in the East 
                        Fork of the Owyhee River; and</DELETED>
                        <DELETED>    (ii) accrued on or before the 
                        effective date of a waiver under this 
                        subsection.</DELETED>
        <DELETED>    (2) Effective date.--</DELETED>
                <DELETED>    (A) In general.--The waiver under 
                paragraph (1) takes effect on the date on which the 
                amounts authorized to be appropriated under subsections 
                (b)(3) and (c)(3) of section 7 are distributed to the 
                Tribes.</DELETED>
                <DELETED>    (B) Tolling of claims.--</DELETED>
                        <DELETED>    (i) In general.--Each applicable 
                        period of limitation and time-based equitable 
                        defense relating to a claim described in 
                        paragraph (1) shall be tolled for the period 
                        beginning on the date of enactment of this Act 
                        and ending on the date on which the amounts 
                        authorized to be appropriated under subsections 
                        (b)(3) and (c)(3) of section 7 are distributed 
                        to the Tribes.</DELETED>
                        <DELETED>    (ii) Effect of subparagraph.--
                        Nothing in this subparagraph revives any claim 
                        or tolls any period of limitation or time-based 
                        equitable defense that expired before the date 
                        of enactment of this Act.</DELETED>
<DELETED>    (c) Retention of Rights.--</DELETED>
        <DELETED>    (1) In general.--The Tribes shall retain all 
        rights not waived by the Tribes, or the United States on behalf 
        of the Tribes, in the Agreement or this Act.</DELETED>
        <DELETED>    (2) Claims outside reservation.--Nothing in the 
        Agreement or this Act shall be considered to be a waiver by the 
        Tribes of any claim to a right on land outside the Duck Valley 
        Indian Reservation.</DELETED>
        <DELETED>    (3) Future acquisition of water rights.--Nothing 
        in the Agreement or this Act precludes the Tribes, or the 
        United States as trustee for the Tribes, from acquiring a water 
        right in the State to the same extent as any other entity in 
        the State, in accordance with State law.</DELETED>

<DELETED>SEC. 9. MISCELLANEOUS.</DELETED>

<DELETED>    (a) General Disclaimer.--The parties to the Agreement 
expressly reserve all rights not specifically granted, recognized, or 
relinquished by--</DELETED>
        <DELETED>    (1) the settlement described in the Agreement; 
        or</DELETED>
        <DELETED>    (2) this Act.</DELETED>
<DELETED>    (b) Limitation of Claims and Rights.--Nothing in this 
Act--</DELETED>
        <DELETED>    (1) establishes a standard for quantifying--
        </DELETED>
                <DELETED>    (A) a Federal reserved water 
                right;</DELETED>
                <DELETED>    (B) an aboriginal claim; or</DELETED>
                <DELETED>    (C) any other water right claim of an 
                Indian tribe in a judicial or administrative 
                proceeding; or</DELETED>
        <DELETED>    (2) limits the right of a party to the Agreement 
        to litigate any issue not resolved by the Agreement or this 
        Act.</DELETED>
<DELETED>    (c) Admission Against Interest.--Nothing in this Act shall 
be considered to be an admission against interest by a party in any 
legal proceeding.</DELETED>
<DELETED>    (d) Duck Valley Reservation.--The Duck Valley Indian 
Reservation established by the Executive order dated April 16, 1877, as 
adjusted pursuant to the Executive order dated May 4, 1886, and 
Executive order numbered 1222 and dated July 1, 1910, for use and 
occupation by the Western Shoshones and the Paddy Cap Band of Paiutes 
shall be--</DELETED>
        <DELETED>    (1) considered to be the property of the Tribes; 
        and</DELETED>
        <DELETED>    (2) permanently held in trust by the United States 
        for the sole use and benefit of the Tribes.</DELETED>
<DELETED>    (e) Jurisdiction.--</DELETED>
        <DELETED>    (1) Subject matter jurisdiction.--Nothing in the 
        Agreement or this Act restricts, enlarges, or otherwise 
        determines the subject matter jurisdiction of any Federal, 
        State, or tribal court.</DELETED>
        <DELETED>    (2) Civil or regulatory jurisdiction.--Nothing in 
        the Agreement or this Act impairs or impedes the exercise of 
        any civil or regulatory authority of the United States, the 
        State, or the Tribes.</DELETED>
        <DELETED>    (3) Consent to jurisdiction.--The United States 
        consents to jurisdiction in a proper forum for purposes of 
        enforcing the provisions of the Agreement.</DELETED>
        <DELETED>    (4) Effect of subsection.--Nothing in this 
        subsection confers jurisdiction on any State court to--
        </DELETED>
                <DELETED>    (A) enforce Federal environmental laws 
                relating to the duties of the United States under this 
                Act; or</DELETED>
                <DELETED>    (B) conduct judicial review of a Federal 
                agency action in accordance with this Act.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Shoshone-Paiute Tribes of the Duck 
Valley Reservation Water Rights Settlement Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) it is the policy of the United States, in accordance 
        with the trust responsibility of the United States to Indian 
        tribes, to promote Indian self-determination and economic self-
        sufficiency and to settle Indian water rights claims without 
        lengthy and costly litigation, if practicable;
            (2) quantifying rights to water and development of 
        facilities needed to use tribal water supplies is essential to 
        the development of viable Indian reservation economies and the 
        establishment of a permanent reservation homeland;
            (3) uncertainty concerning the extent of the Shoshone-
        Paiute Tribes' water rights has resulted in limited access to 
        water and inadequate financial resources necessary to achieve 
        self-determination and self-sufficiency;
            (4) in 2006, the Tribes, the State of Idaho, the affected 
        individual water users, and the United States resolved all 
        tribal claims to water rights in the Snake River Basin 
        Adjudication through a consent decree entered by the District 
        Court of the Fifth Judicial District of the State of Idaho, 
        requiring no further Federal action to quantify the Tribes' 
        water rights in the State of Idaho;
            (5) as of the date of enactment of this Act, proceedings to 
        determine the extent and nature of the water rights of the 
        Tribes in the East Fork of the Owyhee River in Nevada are 
        pending before the Nevada State Engineer;
            (6) final resolution of the Tribes' water claims in the 
        East Fork of the Owyhee River adjudication will--
                    (A) take many years;
                    (B) entail great expense;
                    (C) continue to limit the access of the Tribes to 
                water, with economic and social consequences;
                    (D) prolong uncertainty relating to the 
                availability of water supplies; and
                    (E) seriously impair long-term economic planning 
                and development for all parties to the litigation;
            (7) after many years of negotiation, the Tribes, the State, 
        and the upstream water users have entered into a settlement 
        agreement to resolve permanently all water rights of the Tribes 
        in the State; and
            (8) the Tribes also seek to resolve certain water-related 
        claims for damages against the United States.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to resolve outstanding issues with respect to the East 
        Fork of the Owyhee River in the State in such a manner as to 
        provide important benefits to--
                    (A) the United States;
                    (B) the State;
                    (C) the Tribes; and
                    (D) the upstream water users;
            (2) to achieve a fair, equitable, and final settlement of 
        all claims of the Tribes, members of the Tribes, and the United 
        States on behalf of the Tribes and members of Tribes to the 
        waters of the East Fork of the Owyhee River in the State;
            (3) to ratify and provide for the enforcement of the 
        Agreement among the parties to the litigation;
            (4) to resolve the Tribes' water-related claims for damages 
        against the United States;
            (5) to require the Secretary to perform all obligations of 
        the Secretary under the Agreement and this Act; and
            (6) to authorize the actions and appropriations necessary 
        to meet the obligations of the United States under the 
        Agreement and this Act.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Agreement.--The term ``Agreement'' means the agreement 
        entitled the ``Agreement to Establish the Relative Water Rights 
        of the Shoshone-Paiute Tribes of the Duck Valley Reservation 
        and the Upstream Water Users, East Fork Owyhee River'' and 
        signed in counterpart between, on, or about September 22, 2006, 
        and January 15, 2007 (including all attachments to that 
        Agreement).
            (2) Development fund.--The term ``Development Fund'' means 
        the Shoshone-Paiute Tribes Water Rights Development Fund 
        established by section 8(b)(1).
            (3) East fork of the owyhee river.--The term ``East Fork of 
        the Owyhee River'' means the portion of the east fork of the 
        Owyhee River that is located in the State.
            (4) Maintenance fund.--The term ``Maintenance Fund'' means 
        the Shoshone-Paiute Tribes Operation and Maintenance Fund 
        established by section 8(c)(1).
            (5) Reservation.--The term ``Reservation'' means the Duck 
        Valley Reservation established by the Executive order dated 
        April 16, 1877, as adjusted pursuant to the Executive order 
        dated May 4, 1886, and Executive order numbered 1222 and dated 
        July 1, 1910, for use and occupation by the Western Shoshones 
        and the Paddy Cap Band of Paiutes.
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (7) State.--The term ``State'' means the State of Nevada.
            (8) Tribal water rights.--The term ``tribal water rights'' 
        means rights of the Tribes described in the Agreement relating 
        to water, including groundwater, storage water, and surface 
        water.
            (9) Tribes.--The term ``Tribes'' means the Shoshone-Paiute 
        Tribes of the Duck Valley Reservation.
            (10) Upstream water user.--The term ``upstream water user'' 
        means a non-Federal water user that--
                    (A) is located upstream from the Reservation on the 
                East Fork of the Owyhee River; and
                    (B) is a signatory to the Agreement as a party to 
                the East Fork of the Owyhee River adjudication.

SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT; 
              AUTHORIZATION.

    (a) In General.--Except as provided in subsection (c) and except to 
the extent that the Agreement otherwise conflicts with provisions of 
this Act, the Agreement is approved, ratified, and confirmed.
    (b) Secretarial Authorization.--The Secretary is authorized and 
directed to execute the Agreement as approved by Congress.
    (c) Exception for Tribal Water Marketing.--Notwithstanding any 
language in the Agreement to the contrary, nothing in this Act 
authorizes the Tribes to use or authorize others to use tribal water 
rights off the Reservation, other than use for storage at Wild Horse 
Reservoir or use on tribal land off the Reservation.
    (d) Environmental Compliance.--Execution of the Agreement by the 
Secretary under this section shall not constitute major Federal action 
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.). 
The Secretary shall carry out all environmental compliance required by 
Federal law in implementing the Agreement.
    (e) Performance of Obligations.--The Secretary and any other head 
of a Federal agency obligated under the Agreement shall perform actions 
necessary to carry out an obligation under the Agreement in accordance 
with this Act.

SEC. 6. TRIBAL WATER RIGHTS.

    (a) In General.--Tribal water rights shall be held in trust by the 
United States for the benefit of the Tribes.
    (b) Administration.--
            (1) Enactment of water code.--Not later than 3 years after 
        the date of enactment of this Act, the Tribes, in accordance 
        with provisions of the Tribes' constitution and subject to the 
        approval of the Secretary, shall enact a water code to 
        administer tribal water rights.
            (2) Interim administration.--The Secretary shall regulate 
        the tribal water rights during the period beginning on the date 
        of enactment of this Act and ending on the date on which the 
        Tribes enact a water code under paragraph (1).
    (c) Tribal Water Rights Not Subject to Loss.--The tribal water 
rights shall not be subject to loss by abandonment, forfeiture, or 
nonuse.

SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT.

    (a) Status of the Duck Valley Indian Irrigation Project.--Nothing 
in this Act shall affect the status of the Duck Valley Indian 
Irrigation Project under Federal law.
    (b) Capital Costs Nonreimbursable.--The capital costs associated 
with the Duck Valley Indian Irrigation Project as of the date of 
enactment of this Act, including any capital cost incurred with funds 
distributed under this Act for the Duck Valley Indian Irrigation 
Project, shall be nonreimbursable.

SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS.

    (a) Definition of Funds.--In this section, the term ``Funds'' 
means--
            (1) the Development Fund; and
            (2) the Maintenance Fund.
    (b) Development Fund.--
            (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Water Rights Development Fund''.
            (2) Use of funds.--The Tribes shall use amounts in the 
        Development Fund to rehabilitate and, if the Tribes choose, to 
        expand the Duck Valley Indian Irrigation Project, or for any of 
        the following purposes:
                    (A) To pay or reimburse costs incurred by the 
                Tribes in acquiring land and water rights.
                    (B) For purposes of cultural preservation.
                    (C) To restore or improve fish or wildlife habitat.
                    (D) For fish or wildlife production, water resource 
                development, or agricultural development.
                    (E) For water resource planning and development.
                    (F) To pay the costs of--
                            (i) designing and constructing water supply 
                        and sewer systems for tribal communities, 
                        including a water quality testing laboratory;
                            (ii) other appropriate water-related 
                        projects and other related economic development 
                        projects;
                            (iii) the development of a water code; and
                            (iv) other costs of implementing the 
                        Agreement.
            (3) Authorization of appropriations.--There is authorized 
        to be appropriated to the Secretary for deposit in the 
        Development Fund $9,000,000 for each of fiscal years 2008 
        through 2012.
    (c) Maintenance Fund.--
            (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Operation and Maintenance Fund''.
            (2) Use of funds.--The Tribes shall use amounts in the 
        Maintenance Fund to pay or provide reimbursement for--
                    (A) operation, maintenance, and replacement costs 
                of the Duck Valley Indian Irrigation Project and other 
                water-related projects funded under this Act; or
                    (B) operation, maintenance, and replacement costs 
                of water supply and sewer systems for tribal 
                communities, including the operation and maintenance 
                costs of a water quality testing laboratory.
            (3) Authorization of appropriations.--There is authorized 
        to be appropriated to the Secretary for deposit in the 
        Maintenance Fund $3,000,000 for each of fiscal years 2008 
        through 2012.
    (d) Availability of Amounts From Fund.--Amounts made available 
under subsections (b)(3) and (c)(3) shall be available for expenditure 
or withdrawal only after the effective date as set forth in section 
9(d).
    (e) Administration of Funds.--The Secretary, in accordance with the 
American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 
4001 et seq.) shall manage the Funds, including by investing amounts 
from the Funds in accordance with the Act of April 1, 1880 (25 U.S.C. 
161), and the first section of the Act of June 24, 1938 (25 U.S.C. 
162a).
    (f) Expenditures and Withdrawal.--
            (1) Tribal management plan.--
                    (A) In general.--The Tribes may withdraw all or 
                part of amounts in the Funds on approval by the 
                Secretary of a tribal management plan as described in 
                the American Indian Trust Fund Management Reform Act of 
                1994 (25 U.S.C. 4001 et seq.).
                    (B) Requirements.--In addition to the requirements 
                under the American Indian Trust Fund Management Reform 
                Act of 1994 (25 U.S.C. 4001 et seq.), the tribal 
                management plan shall require that the Tribes spend any 
                amounts withdrawn from the Funds in accordance with the 
                purposes described in subsection (b)(2) or (c)(2).
                    (C) Enforcement.--The Secretary may take judicial 
                or administrative action to enforce the provisions of 
                any tribal management plan to ensure that any amounts 
                withdrawn from the Funds under the plan are used in 
                accordance with this Act and the Agreement.
                    (D) Liability.--If the Tribes exercise the right to 
                withdraw amounts from the Funds, neither the Secretary 
                nor the Secretary of the Treasury shall retain any 
                liability for the expenditure or investment of the 
                amounts.
            (2) Expenditure plan.--
                    (A) In general.--The Tribes shall submit to the 
                Secretary for approval an expenditure plan for any 
                portion of the amounts in the Funds that the Tribes do 
                not withdraw under the tribal management plan.
                    (B) Description.--The expenditure plan shall 
                describe the manner in which, and the purposes for 
                which, amounts of the Tribes remaining in the Funds 
                will be used.
                    (C) Approval.--On receipt of an expenditure plan 
                under subparagraph (A), the Secretary shall approve the 
                plan if the Secretary determines that the plan is 
                reasonable and consistent with this Act and the 
                Agreement.
                    (D) Annual report.--For each Fund, the Tribes shall 
                submit to the Secretary an annual report that describes 
                all expenditures from the Fund during the year covered 
                by the report.
            (3) Funding agreement.--Notwithstanding any other provision 
        of this Act, on receipt of a request from the Tribes, the 
        Secretary shall include an amount from funds made available 
        under this section in the funding agreement of the Tribes under 
        title IV of the Indian Self-Determination and Education 
        Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance 
        with subsections (b)(2) and (c)(2). No amount made available 
        under this Act may be requested until the waivers under section 
        9(a) take effect.
    (g) No Per Capita Payments.--No amount from the Funds (including 
any interest income accruing to the Funds) shall be distributed to a 
member of the Tribes on a per capita basis.

SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS.

    (a) Waiver and Release of Claims by Tribes and United States as 
Trustee for Tribes.--The Tribes and the United States on behalf of the 
Tribes, are authorized to execute a waiver and release of--
            (1) all claims for water rights in, or for waters of, the 
        East Fork of the Owyhee River that the Tribes, or the United 
        States as trustee for the Tribes, asserted or could have 
        asserted in any court proceeding; and
            (2) all claims for damages, losses, or injuries to water 
        rights in the East Fork Owyhee River, including claims of 
        interference, diversion, or taking of water that the Tribes, or 
        the United States as trustee for the Tribes, asserted or could 
        have asserted in any court proceedings.
    (b) Waiver and Release of Claims Against the United States.--The 
Tribes are authorized to execute a waiver and release of--
            (1) all claims against the United States, its agencies, or 
        employees, for water rights in, or waters of, the East Fork of 
        the Owyhee River that the United States asserted or could have 
        asserted in any court proceeding;
            (2) all claims for damages, losses, or injuries to water 
        rights, including claims of interference, diversion, or taking 
        of water, or claims for failure to protect, acquire, or develop 
        water or water rights within the East Fork of the Owyhee River, 
        and claims for fishing rights under any Executive order to the 
        extent that an injury to such a right resulted from a reduction 
        in the quantity of water available in the East Fork Owyhee 
        River; that accrued on or before the effective date specified 
        in subsection (d), that the Tribes have asserted or could have 
        asserted against the United States, its agencies, or employees 
        in any court proceedings; and
            (3) all claims arising out of the negotiation and adoption 
        of the Agreement.
    (c) Retention of Rights.--Notwithstanding the waivers and releases 
set forth in subsections (a) and (b), the Tribes and their members and 
the United States as trustee for the Tribes and their members, shall 
retain--
            (1) all claims for enforcement of the Agreement, the Final 
        Consent Decree, or this Act, through such legal and equitable 
        remedies as may be available in any court of competent 
        jurisdiction;
            (2) all rights to use and protect water rights acquired 
        pursuant to any state law;
            (3) all claims relating to activities affecting the quality 
        of water;
            (4) all rights to land outside the Reservation; and
            (5) all rights, remedies, privileges, immunities, and 
        powers not specifically waived and released under the terms of 
        the Agreement or this Act.
    (d) Effective Date.--Notwithstanding anything in the Agreement to 
the contrary, the waivers by the Tribes, or the United States on behalf 
of the Tribes, under this section shall take effect on the date on 
which the Secretary publishes in the Federal Register a statement of 
findings that includes a finding that--
            (1) the Secretary has executed the Agreement as approved by 
        Congress;
            (2) all parties to the Agreement have executed the 
        Agreement;
            (3) the Fourth Judicial District Court, Elko County, Nevada 
        has issued a judgment and decree consistent with the Agreement 
        from which no further appeal can be taken; and
            (4) the amounts authorized under subsections (b)(3) and 
        (c)(3) of section 8 have been appropriated.
    (e) Failure To Publish Statement of Findings.--If the Secretary 
does not publish a statement of findings under subsection (d) by 
December 31, 2015--
            (1) the Agreement and this Act shall not take effect; and
            (2) any funds and interest accrued thereon that have been 
        appropriated under this Act shall immediately revert to the 
        general fund of the United States Treasury.
    (f) Tolling of Claims.--
            (1) In general.--Each applicable period of limitation and 
        time-based equitable defense relating to a claim described in 
        this section shall be tolled for the period beginning on the 
        date of enactment of this Act and ending on the date on which 
        the amounts authorized to be appropriated under subsections 
        (b)(3) and (c)(3) of section 8 are appropriated.
            (2) Effect of subparagraph.--Nothing in this subparagraph 
        revives any claim or tolls any period of limitation or time-
        based equitable defense that expired before the date of 
        enactment of this Act.
            (3) Future acquisition of water rights.--Nothing in the 
        Agreement or this Act precludes the Tribes, or the United 
        States as trustee for the Tribes, from acquiring a water right 
        in a state to the same extent as any other entity in the state, 
        in accordance with state law.

SEC. 10. MISCELLANEOUS.

    (a) General Disclaimer.--The parties to the Agreement expressly 
reserve all rights not specifically granted, recognized, or 
relinquished by--
            (1) the settlement described in the Agreement; or
            (2) this Act.
    (b) Limitation of Claims and Rights.--Nothing in this Act--
            (1) establishes a standard for quantifying--
                    (A) a Federal reserved water right;
                    (B) an aboriginal claim; or
                    (C) any other water right claim of an Indian tribe 
                in a judicial or administrative proceeding; or
            (2) limits the right of a party to the Agreement to 
        litigate any issue not resolved by the Agreement or this Act.
    (c) Admission Against Interest.--Nothing in this Act constitutes an 
admission against interest by a party in any legal proceeding.
    (d) Reservation.--The Reservation shall be--
            (1) considered to be the property of the Tribes; and
            (2) permanently held in trust by the United States for the 
        sole use and benefit of the Tribes.
    (e) Jurisdiction.--
            (1) Subject matter jurisdiction.--Nothing in the Agreement 
        or this Act restricts, enlarges, or otherwise determines the 
        subject matter jurisdiction of any Federal, State, or tribal 
        court.
            (2) Civil or regulatory jurisdiction.--Nothing in the 
        Agreement or this Act impairs or impedes the exercise of any 
        civil or regulatory authority of the United States, the State, 
        or the Tribes.
            (3) Consent to jurisdiction.--The United States consents to 
        jurisdiction in a proper forum for purposes of enforcing the 
        provisions of the Agreement.
            (4) Effect of subsection.--Nothing in this subsection 
        confers jurisdiction on any State court to--
                    (A) enforce Federal environmental laws relating to 
                the duties of the United States under this Act; or
                    (B) conduct judicial review of a Federal agency 
                action.
                                                       Calendar No. 872

110th CONGRESS

  2d Session

                                 S. 462

                          [Report No. 110-415]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                July 10 (legislative day, July 9), 2008

                       Reported with an amendment
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