II 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Shoshone-Paiute 

3 Tribes of Duck Valley Water Rights Settlement Act’’. 

4 SEC. 2. FINDINGS. 

5 Congress finds that— 

6 (1) it is the policy of the United States, in ac7 cordance with the trust responsibility of the United 

8 States to Indian tribes, to promote Indian self-deter9 mination and economic self-sufficiency and to settle 

10 Indian water rights claims without lengthy and cost11 ly litigation, if practicable; 

12 (2) quantifying rights to water and development 

13 of facilities needed to use tribal water supplies is es14 sential to the development of viable Indian reserva15 tion economies and the establishment of a perma16 nent reservation homeland; 

17 (3) uncertainty concerning the extent of the 

18 right to water of the Shoshone-Paiute Tribes has 

19 limited the access of the Tribes to water and finan20 cial resources necessary to achieve self-determination 

21 and self-sufficiency; 

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

23 affected individual water users, and the United 

24 States resolved all tribal claims to water rights in 

25 the Snake River Basin Adjudication through a con26 sent decree entered by the District Court of the 


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1 Fifth Judicial District of the State of Idaho, requir2 ing no further Federal action to implement the 

3 Tribes’ water rights in the State of Idaho; 

4 (5) as of the date of enactment of this Act, pro5 ceedings to determine the extent and nature of the 

6 water rights of the Tribes are pending before the 

7 Nevada State Engineer; 

8 (6) final resolution through litigation of the 

9 water claims of the Tribes will— 

10 (A) take many years; 

11 (B) entail great expense; 

12 (C) continue to limit the access of the 

13 Tribes to water, with economic and social con14 sequences; 

15 (D) prolong uncertainty relating to the 

16 availability of water supplies; and 

17 (E) seriously impair long-term economic 

18 planning and development for all parties to the 

19 litigation; 

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

21 States, the Tribes, the State, and the upstream 

22 water users have entered into a settlement agree23 ment to resolve permanently all water rights of the 

24 Tribes in the State; and 


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

2 for damages against the United States. 

3 SEC. 3. PURPOSES. 

4 The purposes of this Act are— 

5 (1) to resolve outstanding issues with respect to 

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

7 such a manner as to provide important benefits to— 

8 (A) the United States; 

9 (B) the State; 

10 (C) the Tribes; and 

11 (D) the upstream water users; 

12 (2) to achieve a fair, equitable, and final settle13 ment of all claims of the Tribes, members of the 

14 Tribes, and the United States on behalf of the 

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

16 State; 

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

18 the Agreement among the parties to the litigation; 

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

20 for damages against the United States; 

21 (5) to require the Secretary to perform all obli22 gations of the Secretary under the Agreement and 

23 this Act; and 

24 (6) to authorize the actions and appropriations 

25 necessary for the United States to meet the obligaVerDate Aug 31 2005 04:04 Jul 11, 2008 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S462.RS S462

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1 tions of the United States under the Agreement and 

2 this Act. 

3 SEC. 4. DEFINITIONS. 

4 In this Act: 

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

6 means the agreement entitled the ‘‘Agreement to Es7 tablish the Relative Water Rights of the Shoshone8 Paiute Tribes of the Duck Valley Indian Reservation 

9 and the Upstream Water Users, East Fork Owyhee 

10 River’’ (including all attachments to that agree11 ment). 

12 (2) DEVELOPMENT FUND.—The term ‘‘Devel13 opment Fund’’ means the Shoshone-Paiute Tribes 

14 Water Rights Development Fund established by sec15 tion 7(b)(1). 

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

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

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

19 located in the State. 

20 (4) MAINTENANCE FUND.—The term ‘‘Mainte21 nance Fund’’ means the Shoshone-Paiute Tribes Op22 eration and Maintenance Fund established by sec23 tion 7(c)(1). 

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

25 the Secretary of the Interior. 


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

2 of Nevada. 

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

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

5 in the Agreement relating to water, including 

6 groundwater, storage water, and surface water. 

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

8 Shoshone-Paiute Tribes of the Duck Valley Indian 

9 Reservation. 

10 (9) UPSTREAM WATER USER.—The term ‘‘up11 stream water user’’ means an individual water user 

12 that— 

13 (A) is located upstream from the Duck 

14 Valley Indian Reservation on the East Fork of 

15 the Owyhee River; and 

16 (B) is a signatory to the Agreement. 

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

18 AGREEMENT. 

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

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

21 that the Agreement otherwise conflicts with this Act, the 

22 Agreement is approved, ratified, and confirmed. 

23 (b) PERFORMANCE OF OBLIGATIONS.—The Sec24 retary and any other head of a Federal agency obligated 

25 under the Agreement shall perform any action necessary 


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1 to carry out an obligation under the Agreement in accord2 ance with this Act. 

3 SEC. 6. TRIBAL WATER RIGHTS. 

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

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

6 the benefit of the Tribes. 

7 (b) ADMINISTRATION.— 

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

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

10 the Tribes shall enact a water code to administer 

11 tribal water rights. 

12 (2) INTERIM ADMINISTRATION.—The Secretary 

13 shall regulate the tribal water rights during the pe14 riod beginning on the date of enactment of this Act 

15 and ending on the date on which the Tribes enact 

16 a water code under paragraph (1). 

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

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

19 forfeiture, or nonuse. 

20 SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS. 

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

22 term ‘‘Funds’’ means— 

23 (1) the Development Fund; and 

24 (2) the Maintenance Fund. 

25 (b) DEVELOPMENT FUND.— 


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1 (1) ESTABLISHMENT.—There is established in 

2 the Treasury of the United States a fund to be 

3 known as the ‘‘Shoshone-Paiute Tribes Water 

4 Rights Development Fund’’. 

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

6 amounts in the Development Fund— 

7 (A) to pay or reimburse costs incurred by 

8 the Tribes in acquiring land and water rights; 

9 (B) for purposes of cultural preservation; 

10 (C) to restore or improve fish or wildlife 

11 habitat; 

12 (D) for fish or wildlife production, water 

13 resource development, agricultural development, 

14 rehabilitation, and expansion of the Duck Val15 ley Irrigation Project; 

16 (E) for water resource planning and devel17 opment; or 

18 (F) to pay the costs of designing and con19 structing water supply and sewer systems for 

20 tribal communities, including— 

21 (i) a water quality testing laboratory; 

22 (ii) other appropriate water-related 

23 projects and other related economic devel24 opment projects; 


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1 (iii) the development of a water code; 

2 and 

3 (iv) other costs of implementing the 

4 Agreement. 

5 (3) AUTHORIZATION OF APPROPRIATIONS.— 

6 There is authorized to be appropriated to the Sec7 retary for deposit in the Development Fund 

8 $9,000,000 for each of fiscal years 2008 through 

9 2012. 

10 (c) MAINTENANCE FUND.— 

11 (1) ESTABLISHMENT.—There is established in 

12 the Treasury of the United States a fund to be 

13 known as the ‘‘Shoshone-Paiute Tribes Operation 

14 and Maintenance Fund’’. 

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

16 amounts in the Maintenance Fund to pay or provide 

17 reimbursement for the costs of— 

18 (A) operation and maintenance of the 

19 Duck Valley Irrigation Project and other water20 related projects funded under this Act; or 

21 (B) water supply and sewer systems for 

22 tribal communities, including the operation and 

23 maintenance costs of a water quality testing 

24 laboratory. 


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1 (3) AUTHORIZATION OF APPROPRIATIONS.— 

2 There is authorized to be appropriated to the Sec3 retary for deposit in the Maintenance Fund 

4 $3,000,000 for each of fiscal years 2008 through 

5 2012. 

6 (d) ADMINISTRATION OF FUNDS.— 

7 (1) IN GENERAL.—The Secretary, in accord8 ance with the American Indian Trust Fund Manage9 ment Reform Act of 1994 (25 U.S.C. 4001 et seq.), 

10 this Act, and the Agreement, shall manage the 

11 Funds, including by investing amounts from the 

12 Funds in accordance with— 

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

14 161); and 

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

16 1938 (25 U.S.C. 162a). 

17 (2) DISTRIBUTIONS.— 

18 (A) WITHDRAWALS.— 

19 (i) IN GENERAL.—During any fiscal 

20 year, the Tribes may withdraw amounts 

21 from the Funds if the Secretary approves 

22 a plan of the Tribes to withdraw amounts 

23 under section 202 of the American Indian 

24 Trust Fund Management Reform Act of 

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


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1 (ii) PLAN TO WITHDRAW AMOUNTS.— 

2 (I) INCLUSION.—In addition to 

3 any information required under sec4 tion 202 of the American Indian 

5 Trust Fund Management Reform Act 

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

7 the Tribes to withdraw amounts under 

8 this subparagraph shall include a re9 quirement that the Tribes spend the 

10 amounts withdrawn from the Funds 

11 during a fiscal year for 1 or more 

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

13 (c)(2). 

14 (II) ENFORCEMENT.—The Sec15 retary may take administrative or ju16 dicial action to enforce a plan of the 

17 Tribes to withdraw amounts. 

18 (B) REMAINING AMOUNTS.— 

19 (i) IN GENERAL.—On approval of an 

20 expenditure plan submitted by the Tribes 

21 under clause (ii), the Secretary shall dis22 tribute to the Tribes amounts in the Funds 

23 not withdrawn by the Tribes during the 

24 preceding fiscal year. 

25 (ii) EXPENDITURE PLAN.— 


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1 (I) IN GENERAL.—For each fis2 cal year, the Tribes shall submit to 

3 the Secretary for approval an expendi4 ture plan for amounts described in 

5 clause (i). 

6 (II) INCLUSIONS.—An expendi7 ture plan under subclause (I) shall in8 clude— 

9 (aa) an accounting by the 

10 Tribes of any funds withdrawn 

11 by the Tribes from the Funds 

12 during the preceding fiscal year, 

13 including a description of any use 

14 by the Tribes of the funds and 

15 the amount remaining in the 

16 Funds for the preceding fiscal 

17 year; and 

18 (bb) a description of the 

19 means by which the Tribes will 

20 use any amount distributed 

21 under this subparagraph. 

22 (iii) APPROVAL.—The Secretary shall 

23 approve an expenditure plan under this 

24 subparagraph if the Secretary determines 

25 that the plan is— 


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1 (I) reasonable; and 

2 (II) consistent with this Act and 

3 the Agreement. 

4 (C) LIMITATIONS.— 

5 (i) TIMING.—No amount from the 

6 Funds (including any interest income ac7 cruing to the Funds) shall be distributed 

8 until the waivers under section 8(a) take 

9 effect. 

10 (ii) NO PER CAPITA DISTRIBU11 TIONS.—No amount from the Funds (in12 cluding any interest income accruing to the 

13 Funds) shall be distributed to a member of 

14 the Tribes on a per capita basis. 

15 (3) FUNDING AGREEMENT.—Notwithstanding 

16 any other provision of this Act, on receipt of a re17 quest from the Tribes, the Secretary shall include an 

18 amount appropriated under this subsection in the 

19 funding agreement of the Tribes under title IV of 

20 the Indian Self-Determination and Education Assist21 ance Act (25 U.S.C. 458aa et seq.), for use in ac22 cordance with subsections (b)(2) and (c)(2). 

23 (4) LIABILITY.—The Secretary and the Sec24 retary of the Treasury shall not retain any liability 


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1 for the expenditure or investment of amounts dis2 tributed to the Tribes under this subsection. 

3 (5) CAPITAL COSTS NONREIMBURSABLE.—The 

4 capital costs associated with the Duck Valley Indian 

5 Irrigation Project as of the date of enactment of this 

6 Act, including any capital cost incurred with funds 

7 distributed under this subsection for that project, 

8 shall be permanently nonreimbursable. 

9 SEC. 8. TRIBAL WAIVER OF CLAIMS. 

10 (a) WAIVERS.— 

11 (1) IN GENERAL.—Except as otherwise pro12 vided in the Agreement and this Act, the Tribes, and 

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

14 release— 

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

16 the Owyhee River and all claims to injury relat17 ing to that water; and 

18 (B) all claims against the State, any agen19 cy or political subdivision of the State, or any 

20 person, entity, or corporation relating to injury 

21 to a right of the Tribe under any Executive 

22 order entered on behalf of the Tribes, to the ex23 tent that the injury— 


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1 (i) resulted from a flow modification 

2 or a reduction in the quantity of water 

3 available; and 

4 (ii) accrued on or before the effective 

5 date of the Agreement. 

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

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

8 United States on behalf of the Tribes, shall be en9 forceable in the appropriate forum. 

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

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

12 claim under this subsection shall take effect on the 

13 date on which the Secretary publishes in the Federal 

14 Register a statement of findings that includes a 

15 finding that— 

16 (A) all parties to the Agreement have exe17 cuted the Agreement; 

18 (B) a decree acceptable to each party to 

19 the Agreement has been entered by the Fourth 

20 Judicial District Court, Elko County, Nevada; 

21 and 

22 (C) the Agreement has been ratified under 

23 section 5(a). 

24 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

25 UNITED STATES.— 


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1 (1) IN GENERAL.—In consideration of perform2 ance by the United States of all actions required by 

3 the Agreement and this Act, including the authoriza4 tion of appropriations under subsections (b)(3) and 

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

6 and release of any claim against the United States 

7 for— 

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

9 Owyhee River; 

10 (B) an injury to a right described in sub11 paragraph (A); 

12 (C) breach of trust— 

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

14 develop a water right that accrued on or 

15 before the effective date of a waiver under 

16 this subsection; or 

17 (ii) arising out of the negotiation or 

18 adoption of the Agreement; or 

19 (D) a fishing right under any Executive 

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

21 right— 

22 (i) resulted from a reduction in the 

23 quantity of water available in the East 

24 Fork of the Owyhee River; and 


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1 (ii) accrued on or before the effective 

2 date of a waiver under this subsection. 

3 (2) EFFECTIVE DATE.— 

4 (A) IN GENERAL.—The waiver under para5 graph (1) takes effect on the date on which the 

6 amounts authorized to be appropriated under 

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

8 distributed to the Tribes. 

9 (B) TOLLING OF CLAIMS.— 

10 (i) IN GENERAL.—Each applicable pe11 riod of limitation and time-based equitable 

12 defense relating to a claim described in 

13 paragraph (1) shall be tolled for the period 

14 beginning on the date of enactment of this 

15 Act and ending on the date on which the 

16 amounts authorized to be appropriated 

17 under subsections (b)(3) and (c)(3) of sec18 tion 7 are distributed to the Tribes. 

19 (ii) EFFECT OF SUBPARAGRAPH.— 

20 Nothing in this subparagraph revives any 

21 claim or tolls any period of limitation or 

22 time-based equitable defense that expired 

23 before the date of enactment of this Act. 

24 (c) RETENTION OF RIGHTS.— 


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

2 rights not waived by the Tribes, or the United 

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

4 this Act. 

5 (2) CLAIMS OUTSIDE RESERVATION.—Nothing 

6 in the Agreement or this Act shall be considered to 

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

8 land outside the Duck Valley Indian Reservation. 

9 (3) FUTURE ACQUISITION OF WATER RIGHTS.— 

10 Nothing in the Agreement or this Act precludes the 

11 Tribes, or the United States as trustee for the 

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

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

14 accordance with State law. 

15 SEC. 9. MISCELLANEOUS. 

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

17 Agreement expressly reserve all rights not specifically 

18 granted, recognized, or relinquished by— 

19 (1) the settlement described in the Agreement; 

20 or 

21 (2) this Act. 

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

23 in this Act— 

24 (1) establishes a standard for quantifying— 

25 (A) a Federal reserved water right; 


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1 (B) an aboriginal claim; or 

2 (C) any other water right claim of an In3 dian tribe in a judicial or administrative pro4 ceeding; or 

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

6 to litigate any issue not resolved by the Agreement 

7 or this Act. 

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

9 Act shall be considered to be an admission against interest 

10 by a party in any legal proceeding. 

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

12 Indian Reservation established by the Executive order 

13 dated April 16, 1877, as adjusted pursuant to the Execu14 tive order dated May 4, 1886, and Executive order num15 bered 1222 and dated July 1, 1910, for use and occupa16 tion by the Western Shoshones and the Paddy Cap Band 

17 of Paiutes shall be— 

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

19 and 

20 (2) permanently held in trust by the United 

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

22 (e) JURISDICTION.— 

23 (1) SUBJECT MATTER JURISDICTION.—Nothing 

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


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1 otherwise determines the subject matter jurisdiction 

2 of any Federal, State, or tribal court. 

3 (2) CIVIL OR REGULATORY JURISDICTION.— 

4 Nothing in the Agreement or this Act impairs or im5 pedes the exercise of any civil or regulatory author6 ity of the United States, the State, or the Tribes. 

7 (3) CONSENT TO JURISDICTION.—The United 

8 States consents to jurisdiction in a proper forum for 

9 purposes of enforcing the provisions of the Agree10 ment. 

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

12 subsection confers jurisdiction on any State court 

13 to— 

14 (A) enforce Federal environmental laws re15 lating to the duties of the United States under 

16 this Act; or 

17 (B) conduct judicial review of a Federal 

18 agency action in accordance with this Act. 

19 SECTION 1. SHORT TITLE. 

20 This Act may be cited as the ‘‘Shoshone-Paiute Tribes 

21 of the Duck Valley Reservation Water Rights Settlement 

22 Act’’. 

23 SEC. 2. FINDINGS. 

24 Congress finds that— 


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

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

5 Indian water rights claims without lengthy and costly 

6 litigation, if practicable; 

7 (2) quantifying rights to water and development 

8 of facilities needed to use tribal water supplies is es9 sential to the development of viable Indian reserva10 tion economies and the establishment of a permanent 

11 reservation homeland; 

12 (3) uncertainty concerning the extent of the Sho13 shone-Paiute Tribes’ water rights has resulted in lim14 ited access to water and inadequate financial re15 sources necessary to achieve self-determination and 

16 self-sufficiency; 

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

18 affected individual water users, and the United States 

19 resolved all tribal claims to water rights in the Snake 

20 River Basin Adjudication through a consent decree 

21 entered by the District Court of the Fifth Judicial 

22 District of the State of Idaho, requiring no further 

23 Federal action to quantify the Tribes’ water rights in 

24 the State of Idaho; 


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

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

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

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

7 the East Fork of the Owyhee River adjudication 

8 will— 

9 (A) take many years; 

10 (B) entail great expense; 

11 (C) continue to limit the access of the Tribes 

12 to water, with economic and social consequences; 

13 (D) prolong uncertainty relating to the 

14 availability of water supplies; and 

15 (E) seriously impair long-term economic 

16 planning and development for all parties to the 

17 litigation; 

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

19 the State, and the upstream water users have entered 

20 into a settlement agreement to resolve permanently all 

21 water rights of the Tribes in the State; and 

22 (8) the Tribes also seek to resolve certain water23 related claims for damages against the United States. 

24 SEC. 3. PURPOSES. 

25 The purposes of this Act are— 


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1 (1) to resolve outstanding issues with respect to 

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

3 such a manner as to provide important benefits to— 

4 (A) the United States; 

5 (B) the State; 

6 (C) the Tribes; and 

7 (D) the upstream water users; 

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

10 Tribes, and the United States on behalf of the Tribes 

11 and members of Tribes to the waters of the East Fork 

12 of the Owyhee River in the State; 

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

14 the Agreement among the parties to the litigation; 

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

16 damages against the United States; 

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

19 Act; and 

20 (6) to authorize the actions and appropriations 

21 necessary to meet the obligations of the United States 

22 under the Agreement and this Act. 

23 SEC. 4. DEFINITIONS. 

24 In this Act: 


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

2 the agreement entitled the ‘‘Agreement to Establish 

3 the Relative Water Rights of the Shoshone-Paiute 

4 Tribes of the Duck Valley Reservation and the Up5 stream Water Users, East Fork Owyhee River’’ and 

6 signed in counterpart between, on, or about Sep7 tember 22, 2006, and January 15, 2007 (including 

8 all attachments to that Agreement). 

9 (2) DEVELOPMENT FUND.—The term ‘‘Develop10 ment Fund’’ means the Shoshone-Paiute Tribes Water 

11 Rights Development Fund established by section 

12 8(b)(1). 

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

14 term ‘‘East Fork of the Owyhee River’’ means the por15 tion of the east fork of the Owyhee River that is lo16 cated in the State. 

17 (4) MAINTENANCE FUND.—The term ‘‘Mainte18 nance Fund’’ means the Shoshone-Paiute Tribes Op19 eration and Maintenance Fund established by section 

20 8(c)(1). 

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

22 means the Duck Valley Reservation established by the 

23 Executive order dated April 16, 1877, as adjusted 

24 pursuant to the Executive order dated May 4, 1886, 

25 and Executive order numbered 1222 and dated July 


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1 1, 1910, for use and occupation by the Western Sho2 shones and the Paddy Cap Band of Paiutes. 

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

4 the Secretary of the Interior. 

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

6 of Nevada. 

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

8 water rights’’ means rights of the Tribes described in 

9 the Agreement relating to water, including ground10 water, storage water, and surface water. 

11 (9) TRIBES.—The term ‘‘Tribes’’ means the Sho12 shone-Paiute Tribes of the Duck Valley Reservation. 

13 (10) UPSTREAM WATER USER.—The term ‘‘up14 stream water user’’ means a non-Federal water user 

15 that— 

16 (A) is located upstream from the Reserva17 tion on the East Fork of the Owyhee River; and 

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

19 party to the East Fork of the Owyhee River ad20 judication. 

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

22 AGREEMENT; AUTHORIZATION. 

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

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


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1 conflicts with provisions of this Act, the Agreement is ap2 proved, ratified, and confirmed. 

3 (b) SECRETARIAL AUTHORIZATION.—The Secretary is 

4 authorized and directed to execute the Agreement as ap5 proved by Congress. 

6 (c) EXCEPTION FOR TRIBAL WATER MARKETING.— 

7 Notwithstanding any language in the Agreement to the con8 trary, nothing in this Act authorizes the Tribes to use or 

9 authorize others to use tribal water rights off the Reserva10 tion, other than use for storage at Wild Horse Reservoir 

11 or use on tribal land off the Reservation. 

12 (d) ENVIRONMENTAL COMPLIANCE.—Execution of the 

13 Agreement by the Secretary under this section shall not con14 stitute major Federal action under the National Environ15 mental Policy Act (42 U.S.C. 4321 et seq.). The Secretary 

16 shall carry out all environmental compliance required by 

17 Federal law in implementing the Agreement. 

18 (e) PERFORMANCE OF OBLIGATIONS.—The Secretary 

19 and any other head of a Federal agency obligated under 

20 the Agreement shall perform actions necessary to carry out 

21 an obligation under the Agreement in accordance with this 

22 Act. 

23 SEC. 6. TRIBAL WATER RIGHTS. 

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

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


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1 (b) ADMINISTRATION.— 

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

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

4 the Tribes, in accordance with provisions of the 

5 Tribes’ constitution and subject to the approval of the 

6 Secretary, shall enact a water code to administer trib7 al water rights. 

8 (2) INTERIM ADMINISTRATION.—The Secretary 

9 shall regulate the tribal water rights during the pe10 riod beginning on the date of enactment of this Act 

11 and ending on the date on which the Tribes enact a 

12 water code under paragraph (1). 

13 (c) TRIBAL WATER RIGHTS NOT SUBJECT TO LOSS.— 

14 The tribal water rights shall not be subject to loss by aban15 donment, forfeiture, or nonuse. 

16 SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT. 

17 (a) STATUS OF THE DUCK VALLEY INDIAN IRRIGATION

18 PROJECT.—Nothing in this Act shall affect the status of the 

19 Duck Valley Indian Irrigation Project under Federal law. 

20 (b) CAPITAL COSTS NONREIMBURSABLE.—The capital 

21 costs associated with the Duck Valley Indian Irrigation 

22 Project as of the date of enactment of this Act, including 

23 any capital cost incurred with funds distributed under this 

24 Act for the Duck Valley Indian Irrigation Project, shall be 

25 nonreimbursable. 


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1 SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS. 

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

3 ‘‘Funds’’ means— 

4 (1) the Development Fund; and 

5 (2) the Maintenance Fund. 

6 (b) DEVELOPMENT FUND.— 

7 (1) ESTABLISHMENT.—There is established in 

8 the Treasury of the United States a fund to be known 

9 as the ‘‘Shoshone-Paiute Tribes Water Rights Devel10 opment Fund’’. 

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

12 amounts in the Development Fund to rehabilitate 

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

14 Indian Irrigation Project, or for any of the following 

15 purposes: 

16 (A) To pay or reimburse costs incurred by 

17 the Tribes in acquiring land and water rights. 

18 (B) For purposes of cultural preservation. 

19 (C) To restore or improve fish or wildlife 

20 habitat. 

21 (D) For fish or wildlife production, water 

22 resource development, or agricultural develop23 ment. 

24 (E) For water resource planning and devel25 opment. 

26 (F) To pay the costs of— 


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1 (i) designing and constructing water 

2 supply and sewer systems for tribal commu3 nities, including a water quality testing 

4 laboratory; 

5 (ii) other appropriate water-related 

6 projects and other related economic develop7 ment projects; 

8 (iii) the development of a water code; 

9 and 

10 (iv) other costs of implementing the 

11 Agreement. 

12 (3) AUTHORIZATION OF APPROPRIATIONS.— 

13 There is authorized to be appropriated to the Sec14 retary for deposit in the Development Fund 

15 $9,000,000 for each of fiscal years 2008 through 2012. 

16 (c) MAINTENANCE FUND.— 

17 (1) ESTABLISHMENT.—There is established in 

18 the Treasury of the United States a fund to be known 

19 as the ‘‘Shoshone-Paiute Tribes Operation and Main20 tenance Fund’’. 

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

22 amounts in the Maintenance Fund to pay or provide 

23 reimbursement for— 

24 (A) operation, maintenance, and replace25 ment costs of the Duck Valley Indian Irrigation 


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1 Project and other water-related projects funded 

2 under this Act; or 

3 (B) operation, maintenance, and replace4 ment costs of water supply and sewer systems for 

5 tribal communities, including the operation and 

6 maintenance costs of a water quality testing lab7 oratory. 

8 (3) AUTHORIZATION OF APPROPRIATIONS.— 

9 There is authorized to be appropriated to the Sec10 retary for deposit in the Maintenance Fund 

11 $3,000,000 for each of fiscal years 2008 through 2012. 

12 (d) AVAILABILITY OF AMOUNTS FROM FUND.— 

13 Amounts made available under subsections (b)(3) and (c)(3) 

14 shall be available for expenditure or withdrawal only after 

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

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

17 accordance with the American Indian Trust Fund Manage18 ment Reform Act of 1994 (25 U.S.C. 4001 et seq.) shall 

19 manage the Funds, including by investing amounts from 

20 the Funds in accordance with the Act of April 1, 1880 (25 

21 U.S.C. 161), and the first section of the Act of June 24, 

22 1938 (25 U.S.C. 162a). 

23 (f) EXPENDITURES AND WITHDRAWAL.— 

24 (1) TRIBAL MANAGEMENT PLAN.— 


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1 (A) IN GENERAL.—The Tribes may with2 draw all or part of amounts in the Funds on ap3 proval by the Secretary of a tribal management 

4 plan as described in the American Indian Trust 

5 Fund Management Reform Act of 1994 (25 

6 U.S.C. 4001 et seq.). 

7 (B) REQUIREMENTS.—In addition to the 

8 requirements under the American Indian Trust 

9 Fund Management Reform Act of 1994 (25 

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

11 shall require that the Tribes spend any amounts 

12 withdrawn from the Funds in accordance with 

13 the purposes described in subsection (b)(2) or 

14 (c)(2). 

15 (C) ENFORCEMENT.—The Secretary may 

16 take judicial or administrative action to enforce 

17 the provisions of any tribal management plan to 

18 ensure that any amounts withdrawn from the 

19 Funds under the plan are used in accordance 

20 with this Act and the Agreement. 

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

22 right to withdraw amounts from the Funds, nei23 ther the Secretary nor the Secretary of the Treas24 ury shall retain any liability for the expenditure 

25 or investment of the amounts. 


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1 (2) EXPENDITURE PLAN.— 

2 (A) IN GENERAL.—The Tribes shall submit 

3 to the Secretary for approval an expenditure 

4 plan for any portion of the amounts in the 

5 Funds that the Tribes do not withdraw under the 

6 tribal management plan. 

7 (B) DESCRIPTION.—The expenditure plan 

8 shall describe the manner in which, and the pur9 poses for which, amounts of the Tribes remaining 

10 in the Funds will be used. 

11 (C) APPROVAL.—On receipt of an expendi12 ture plan under subparagraph (A), the Secretary 

13 shall approve the plan if the Secretary deter14 mines that the plan is reasonable and consistent 

15 with this Act and the Agreement. 

16 (D) ANNUAL REPORT.—For each Fund, the 

17 Tribes shall submit to the Secretary an annual 

18 report that describes all expenditures from the 

19 Fund during the year covered by the report. 

20 (3) FUNDING AGREEMENT.—Notwithstanding 

21 any other provision of this Act, on receipt of a request 

22 from the Tribes, the Secretary shall include an 

23 amount from funds made available under this section 

24 in the funding agreement of the Tribes under title IV 

25 of the Indian Self-Determination and Education AsVerDate Aug 31 2005 04:04 Jul 11, 2008 Jkt 069200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6203 E:\BILLS\S462.RS S462

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1 sistance Act (25 U.S.C. 458aa et seq.), for use in ac2 cordance with subsections (b)(2) and (c)(2). No 

3 amount made available under this Act may be re4 quested until the waivers under section 9(a) take ef5 fect. 

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

7 Funds (including any interest income accruing to the 

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

9 a per capita basis. 

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

11 (a) WAIVER AND RELEASE OF CLAIMS BY TRIBES AND

12 UNITED STATES AS TRUSTEE FOR TRIBES.—The Tribes 

13 and the United States on behalf of the Tribes, are authorized 

14 to execute a waiver and release of— 

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

16 of, the East Fork of the Owyhee River that the Tribes, 

17 or the United States as trustee for the Tribes, asserted 

18 or could have asserted in any court proceeding; and 

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

20 water rights in the East Fork Owyhee River, includ21 ing claims of interference, diversion, or taking of 

22 water that the Tribes, or the United States as trustee 

23 for the Tribes, asserted or could have asserted in any 

24 court proceedings. 


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1 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

2 UNITED STATES.—The Tribes are authorized to execute a 

3 waiver and release of— 

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

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

6 of, the East Fork of the Owyhee River that the United 

7 States asserted or could have asserted in any court 

8 proceeding; 

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

10 water rights, including claims of interference, diver11 sion, or taking of water, or claims for failure to pro12 tect, acquire, or develop water or water rights within 

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

14 fishing rights under any Executive order to the extent 

15 that an injury to such a right resulted from a reduc16 tion in the quantity of water available in the East 

17 Fork Owyhee River; that accrued on or before the ef18 fective date specified in subsection (d), that the Tribes 

19 have asserted or could have asserted against the 

20 United States, its agencies, or employees in any court 

21 proceedings; and 

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

23 adoption of the Agreement. 

24 (c) RETENTION OF RIGHTS.—Notwithstanding the 

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


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1 the Tribes and their members and the United States as 

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

3 (1) all claims for enforcement of the Agreement, 

4 the Final Consent Decree, or this Act, through such 

5 legal and equitable remedies as may be available in 

6 any court of competent jurisdiction; 

7 (2) all rights to use and protect water rights ac8 quired pursuant to any state law; 

9 (3) all claims relating to activities affecting the 

10 quality of water; 

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

12 and 

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

14 and powers not specifically waived and released 

15 under the terms of the Agreement or this Act. 

16 (d) EFFECTIVE DATE.—Notwithstanding anything in 

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

18 or the United States on behalf of the Tribes, under this sec19 tion shall take effect on the date on which the Secretary 

20 publishes in the Federal Register a statement of findings 

21 that includes a finding that— 

22 (1) the Secretary has executed the Agreement as 

23 approved by Congress; 

24 (2) all parties to the Agreement have executed the 

25 Agreement; 


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1 (3) the Fourth Judicial District Court, Elko 

2 County, Nevada has issued a judgment and decree 

3 consistent with the Agreement from which no further 

4 appeal can be taken; and 

5 (4) the amounts authorized under subsections 

6 (b)(3) and (c)(3) of section 8 have been appropriated. 

7 (e) FAILURE TO PUBLISH STATEMENT OF FIND8 INGS.—If the Secretary does not publish a statement of 

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

10 (1) the Agreement and this Act shall not take ef11 fect; and 

12 (2) any funds and interest accrued thereon that 

13 have been appropriated under this Act shall imme14 diately revert to the general fund of the United States 

15 Treasury. 

16 (f) TOLLING OF CLAIMS.— 

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

18 limitation and time-based equitable defense relating 

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

20 the period beginning on the date of enactment of this 

21 Act and ending on the date on which the amounts au22 thorized to be appropriated under subsections (b)(3) 

23 and (c)(3) of section 8 are appropriated. 

24 (2) EFFECT OF SUBPARAGRAPH.—Nothing in 

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1 riod of limitation or time-based equitable defense that 

2 expired before the date of enactment of this Act. 

3 (3) FUTURE ACQUISITION OF WATER RIGHTS.— 

4 Nothing in the Agreement or this Act precludes the 

5 Tribes, or the United States as trustee for the Tribes, 

6 from acquiring a water right in a state to the same 

7 extent as any other entity in the state, in accordance 

8 with state law. 

9 SEC. 10. MISCELLANEOUS. 

10 (a) GENERAL DISCLAIMER.—The parties to the Agree11 ment expressly reserve all rights not specifically granted, 

12 recognized, or relinquished by— 

13 (1) the settlement described in the Agreement; or 

14 (2) this Act. 

15 (b) LIMITATION OF CLAIMS AND RIGHTS.—Nothing in 

16 this Act— 

17 (1) establishes a standard for quantifying— 

18 (A) a Federal reserved water right; 

19 (B) an aboriginal claim; or 

20 (C) any other water right claim of an In21 dian tribe in a judicial or administrative pro22 ceeding; or 

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

24 to litigate any issue not resolved by the Agreement or 

25 this Act. 


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

2 Act constitutes an admission against interest by a party 

3 in any legal proceeding. 

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

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

6 and 

7 (2) permanently held in trust by the United 

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

9 (e) JURISDICTION.— 

10 (1) SUBJECT MATTER JURISDICTION.—Nothing 

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

12 otherwise determines the subject matter jurisdiction of 

13 any Federal, State, or tribal court. 

14 (2) CIVIL OR REGULATORY JURISDICTION.— 

15 Nothing in the Agreement or this Act impairs or im16 pedes the exercise of any civil or regulatory authority 

17 of the United States, the State, or the Tribes. 

18 (3) CONSENT TO JURISDICTION.—The United 

19 States consents to jurisdiction in a proper forum for 

20 purposes of enforcing the provisions of the Agreement. 

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

22 subsection confers jurisdiction on any State court 

23 to— 


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1 (A) enforce Federal environmental laws re2 lating to the duties of the United States under 

3 this Act; or 

4 (B) conduct judicial review of a Federal 

5 agency action. 


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Calendar No. 872 

110TH CONGRESS 

2D SESSION S. 462 

[Report No. 110

–415] 

A BILL 

To approve the settlement of the water rights 

tlement, and for other purposes. the Secretary of the Interior to carry out the setDuck Valley Reservation in Nevada, to require claims of the Shoshone-Paiute Tribes of the 

JULY 10 (legislative day, JULY 9), 2008 

Reported with an amendment 


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