II 115th CONGRESS 1st Session S. 2154 IN THE SENATE OF THE UNITED STATES November 16, 2017 Mr. Moran introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To approve the Kickapoo Tribe Water Rights Settlement Agreement, and for other purposes.

1. Short title (a) Short title; table of contents This Act may be cited as the Kickapoo Tribe in Kansas Water Rights Settlement Agreement Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Purposes. Sec. 3. Definitions. Sec. 4. Approval of the Kickapoo Tribe Water Rights Settlement Agreement. Sec. 5. Kickapoo Tribe Water Rights. Sec. 6. Effect of Kickapoo Tribe Water Rights Settlement Agreement and Act. Sec. 7. Water facilities. Sec. 8. Waiver and release of claims; retention of claims. Sec. 9. Judicial proceedings. Sec. 10. Miscellaneous provisions. 2. Purposes The purposes of this Act are— (1) to achieve a fair, equitable, and final settlement of claims to water rights in the Delaware River Basin in Kansas for— (A) the Tribe; (B) its members and allottees; and (C) the United States, acting in its capacity as trustee for the Tribe and its members and allottees; (2) to authorize, ratify, and confirm provisions of the Kickapoo Tribe Water Rights Settlement Agreement pertaining to the Tribal water rights negotiated by the Tribe, the State of Kansas, and the United States, and prior to the passage of this Act, entered into by the Tribe and the State of Kansas; (3) to authorize and direct the Secretary— (A) to execute the Kickapoo Tribe Water Rights Settlement Agreement; and (B) to take any other action necessary to carry out the Kickapoo Tribe Water Rights Settlement Agreement in accordance with this Act; and (4) to direct the Natural Resources Conservation Service of the Department of Agriculture to take certain actions under the authority of the Watershed Protection and Flood Prevention Act ( 16 U.S.C. 1001 et seq.) and other actions consistent with this Act. 3. Definitions In this Act: (1) Act The term Act means the Act of Congress to authorize the United States to enter into the Kickapoo Tribe Water Rights Settlement Agreement and to execute the obligations set forth herein, and for other purposes set forth herein. (2) Allotted lands The term allotted lands means lands within the boundaries of the Reservation that were allotted to individual Kickapoo Tribe members in accordance with a treaty or Federal statute, and that are held in trust by the United States for the benefit of one or more members or successors in interest thereto. (3) Allottee The term allottee means an individual who holds a beneficial real property interest in an Indian allotment that is— (A) located within the Reservation; and (B) held in trust by the United States. (4) Court The term Court means the United States District Court for the District of Kansas unless otherwise specified herein. (5) Delaware River Basin The term Delaware River Basin means that area of land, depicted on the map attached as Exhibit 1 to the Kickapoo Tribe Water Rights Settlement Agreement, within which the Chief Engineer will administer nondomestic Kansas water rights to protect the Tribal water rights. (6) Enforceability date The term enforceability date means the date on which the Secretary publishes in the Federal Register the statement of findings described in section 6(c). (7) Indian Tribe The term Indian Tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 5304 ). (8) Kansas water rights The term Kansas water rights means a property right in the use of water obtained under Kansas law. (9) Kickapoo Tribe Water Rights Settlement Agreement The term Kickapoo Tribe Water Rights Settlement Agreement means the Agreement executed by and between the Tribe and the State of Kansas on September 9, 2016, that is the subject of this approving legislation. (10) Member The term member means any person duly enrolled as a member of the Tribe. (11) Reservation The term Reservation — (A) means the land depicted on the map attached to the Kickapoo Tribe Water Rights Settlement Agreement as Exhibit I; and (B) shall be used solely for the purposes of the Kickapoo Tribe Water Rights Settlement Agreement, this Act, and any judgment or decree issued by the Court approving the Kickapoo Tribe Water Rights Settlement Agreement. (12) Secretary The term Secretary means the Secretary of the Interior. (13) State of Kansas The term State of Kansas means the Kansas State government and all of its officers, agents, agencies, departments, and divisions. (14) Tribal water rights The term Tribal water rights means the water rights ratified, confirmed, and declared to be valid for the benefit of the Tribe and its members and allottees, as set forth and described in section 5. (15) Tribe The term Tribe means the Kickapoo Tribe in Kansas, a Federally recognized sovereign Indian Tribe that functions as a customary and traditional Indian Tribe, acting on behalf of itself and its members, but not acting on behalf of members in their capacities as allottees. 4. Approval of the Kickapoo Tribe Water Rights Settlement Agreement (a) Ratification of Kickapoo Tribe Water Rights Settlement Agreement (1) In general Except as modified by this Act, and to the extent that the Kickapoo Tribe Water Rights Settlement Agreement does not conflict with this Act, the Kickapoo Tribe Water Rights Settlement Agreement is authorized, ratified, and confirmed. (2) Amendments Any amendment to the Kickapoo Tribe Water Rights Settlement Agreement is authorized, ratified, and confirmed, to the extent that the amendment is executed to make the Kickapoo Tribe Water Rights Settlement Agreement consistent with this Act. (b) Execution of Kickapoo Tribe Water Rights Settlement Agreement (1) In general To the extent that the Kickapoo Tribe Water Rights Settlement Agreement does not conflict with this Act, the Secretary is directed to and promptly shall execute— (A) the Kickapoo Tribe Water Rights Settlement Agreement (including any exhibit to the Kickapoo Tribe Water Rights Settlement Agreement requiring the signature of the Secretary); and (B) any amendment to the Kickapoo Tribe Water Rights Settlement Agreement necessary to make the Kickapoo Tribe Water Rights Settlement Agreement consistent with this Act. (2) Modifications Nothing in this Act precludes the Secretary from approving modifications to exhibits to the Kickapoo Tribe Water Rights Settlement Agreement not inconsistent with this Act, to the extent those modifications do not otherwise require congressional approval pursuant to section 2116 of the Revised Statutes ( 25 U.S.C. 177 ) or other applicable Federal law. (c) Environmental compliance (1) In general In implementing the Kickapoo Tribe Water Rights Settlement Agreement, to the extent required the Secretary, shall promptly comply with all applicable requirements of— (A) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.); (B) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); (C) all other applicable Federal environmental laws; and (D) all regulations promulgated under the laws described in subparagraphs (A) through (C). (2) Compliance with Federal laws (A) Compliance The Secretary is directed to carry out all Federal compliance necessary to implement the Kickapoo Tribe Water Rights Settlement Agreement. (B) NEPA Execution of the Kickapoo Tribe Water Rights Settlement Agreement by the Secretary under this section shall not constitute a major Federal action under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). (3) Lead agency The Bureau of Indian Affairs shall be designated as the lead agency with respect to environmental compliance pursuant to this section. 5. Kickapoo Tribe Water Rights (a) Intent of Congress It is the intent of Congress to provide to each allottee benefits that are equal to or exceed the benefits allottees possess as of the date of enactment of this Act, taking into consideration— (1) the potential risks, cost, and time delay associated with litigation that would be resolved by the Kickapoo Tribe Water Rights Settlement Agreement and this Act; (2) the availability of water from the Tribal water rights as set forth in the Kickapoo Tribe Water Rights Settlement Agreement; and (3) the applicability of section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), and this Act to protect the interests of allottees. (b) Confirmation of Tribal water rights (1) In general A consumptive Tribal water right of up to 4,705 acre-feet of water per year is confirmed in accordance with the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement. (2) Use Subject to the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement, this Act, and applicable Federal law, the Tribe may use the Tribal water rights for any purpose. (c) Holding in trust The Tribal water rights, as set forth in subsection (b), shall— (1) be held in trust by the United States on behalf of the Tribe and its members and allottees in accordance with this section; (2) include the priority date set forth in the Kickapoo Tribe Water Rights Settlement Agreement; and (3) not be subject to forfeiture or abandonment. (d) Allottees (1) Applicability of act of February 8, 1887 The provisions of section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), relating to the use of water for irrigation purposes shall apply to the Tribal water rights. (2) Entitlement to water Any entitlement to water for allotted land located within the exterior boundaries of the Reservation under Federal law shall be satisfied from the Tribal water rights. (3) Allocations Allotted land located within the exterior boundaries of the Reservation shall be entitled to a just and suitable allocation of water for irrigation and domestic purposes from the Tribal water rights. (4) Members Members who do not own interests in allotted land shall nonetheless be entitled to the use of a portion of the Tribal water rights pursuant to the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement and the Tribal Water Code. (5) Exhaustion of remedies Before asserting any claim against the United States under section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), or any other applicable law, a member or allottee shall exhaust remedies available under the Tribal Water Code or other applicable Tribal law. (6) Claims Following exhaustion of remedies available under the Tribal Water Code or other applicable tribal law, a member or allottee may seek relief under section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), or other applicable law. (7) Authority The Secretary shall have the authority to protect the rights of members or allottees as specified in this section. (e) Authority of Tribe (1) In general Except as provided in paragraph (2), the Tribe shall have authority to use, allocate, distribute, and lease the Tribal water rights on or off the Reservation in accordance with— (A) the Kickapoo Tribe Water Rights Settlement Agreement; (B) the Tribal Water Code or other applicable tribal law; and (C) applicable Federal law. (2) Leases by allottees (A) In general An allottee may lease any interest in land held by the allottee, together with any water rights determined to be appurtenant to that interest in land. (B) Water rights appurtenant Any water rights determined to be appurtenant to an interest in land leased by an allottee shall be used on or off the Reservation, consistent with the Kickapoo Tribe Water Rights Settlement Agreement. (C) Water rights apportioned Water apportioned from the Tribal water rights may be leased off Reservation pursuant to the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement. (f) Tribal Water Code (1) In general Not later than 3 years after the enforceability date, the Tribe shall enact a Tribal Water Code, that provides for— (A) the management, regulation, and governance of all uses of the Tribal water rights in accordance with the Kickapoo Tribe Water Rights Settlement Agreement; and (B) establishment by the Tribe of conditions, permit requirements, and other limitations relating to the diversion, storage, and use of the Tribal water rights in accordance with the Kickapoo Tribe Water Rights Settlement Agreement. (2) Inclusions The Tribal Water Code shall provide— (A) that allocations of water to members or allottees shall be satisfied with water from the Tribal water rights; (B) that charges for delivery of water for irrigation purposes for allottees shall be assessed in accordance with section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ); (C) the process by which a member or allottee may request that the Tribe provide water for irrigation or domestic purposes in accordance with this Act; (D) a due process system for the consideration and determination by the Tribe of any request by a member or allottee for an allocation of such water for irrigation or domestic purposes on allotted land, including a process for— (i) appeal and adjudication of any denied or disputed distribution of water; and (ii) resolution of any contested administrative decision; and (E) a requirement that any member or allottee with a claim relating to the enforcement of rights of the member or allottee under the Tribal Water Code or relating to the amount of water allocated to land of the allottee must first exhaust remedies available to the member or allottee under Tribal law and the Tribal Water Code before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(5). (3) Action by Secretary (A) In general The Secretary shall administer the Tribal water rights until the Tribal Water Code is enacted and approved under this section. (B) Approval Any provision of the Tribal Water Code and any amendment to the Tribal Water Code that affects the rights of members or allottees— (i) shall be subject to the approval of the Secretary; and (ii) shall not be valid until approved by the Secretary. (C) Approval period The Secretary shall approve or disapprove the Tribal Water Code within a reasonable period of time after the date on which the Tribe submits the Tribal Water Code to the Secretary for approval. (g) Effect Except as otherwise specifically provided in this section, nothing in this Act— (1) authorizes any action by a member or allottee (or any successor in interest to an allottee) against any individual or entity, or against the Tribe, under Federal, State, Tribal, or local law; or (2) alters or affects the status of any action pursuant to section 1491(a) of title 28, United States Code. 6. Effect of Kickapoo Tribe Water Rights Settlement Agreement and Act (a) Administration of Kansas water rights The State of Kansas shall administer all Kansas water rights in the Delaware River Basin in conformity with Article 7 of the Kickapoo Tribe Water Rights Settlement Agreement, the Memorandum of Agreement and other exhibits referenced therein and attached thereto, and this Act. (b) Effect of Kickapoo Tribe Water Rights Settlement Agreement and Act Nothing in the Kickapoo Tribe Water Rights Settlement Agreement or this Act— (1) affects the ability of the United States, acting as sovereign, to take actions authorized by law, including any laws relating to health, safety, or the environment, including— (A) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.); (B) the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.); (C) the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.); and (D) any regulations implementing the Acts described in subparagraphs (A) through (C); (2) affects the ability of the United States to take actions acting as trustee for any other Indian Tribe or a member or allottee of any other Indian Tribe; (3) confers jurisdiction on any State court— (A) to interpret Federal law regarding health, safety, or the environment; (B) to determine the duties of the United States or other parties pursuant to Federal law regarding health, safety, or the environment; and (C) to conduct judicial review of Federal agency action; (4) waives any claim of a member of the Tribe in an individual capacity that does not derive from a right of the Tribe; or (5) affects the requirement of any party to the Kickapoo Tribe Water Rights Settlement Agreement or any of the exhibits to the Kickapoo Tribe Water Rights Settlement Agreement to comply with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) prior to performing the respective obligations of that party under the Kickapoo Tribe Water Rights Settlement Agreement. (c) Enforceability date The enforceability date shall be the date on which the Secretary publishes in the Federal Register a statement of findings that the Court has approved and entered a judgment and decree approving the Kickapoo Tribe Water Rights Settlement Agreement. 7. Water facilities The Secretary of Agriculture, as delegated to the Director of the Natural Resources Conservation Service, in consultation with the Secretary as delegated to the Secretary’s Indian Water Rights Office, is hereby directed— (1) to commence a study of the Upper Delaware and Tributaries Watershed project, as authorized by the Committee on Environment and Public Works of the Senate (Senate Report 105–13; April 22, 1997); and (2) not later than 2 years after the date of enactment of this Act, make recommendations to Congress with respect to material alterations or changes in the Plan necessary to effectuate, in part, the Tribal water rights approved, ratified, and confirmed by the Kickapoo Tribe Water Rights Settlement Agreement and this Act. 8. Waiver and release of claims; retention of claims As described in Article 12 of the Kickapoo Tribe Water Rights Settlement Agreement— (1) upon the enactment of this Act, the Tribe and the United States agree to waive claims to water rights in the Delaware River Basin; and (2) nothing in this Act resolves or waives any claims for damages or losses by the Tribe against the United States, for injuries to water rights or claims of interference with, diversion, or taking of water (including claims for injury to lands resulting from such damages, losses, injuries, interference with, diversion, or taking) in the Delaware River Basin for failure to establish, quantify, acquire, develop, enforce, or protect such water rights. 9. Judicial proceedings Upon the date of enactment of this Act, the judicial proceedings described in Articles 10 and 11 of the Kickapoo Tribe Water Rights Settlement Agreement shall be and are hereby authorized to be commenced. 10. Miscellaneous provisions (a) Waiver of sovereign immunity by the United States Except as provided in subsections (a) through (c) of section 208 of the Department of Justice Appropriation Act, 1953 ( 43 U.S.C. 666 ) and the Kickapoo Tribe Water Rights Settlement Agreement, nothing in this Act waives the sovereign immunity of the United States. (b) Other tribes not adversely affected Nothing in this Act quantifies or diminishes any land or water rights, or any claim or entitlement to land or water, of an Indian Tribe, band, or community other than the Tribe. (c) Limitation on claims for reimbursement With respect to Indian land within the Reservation— (1) the United States shall not submit against any Indian-owned land located within the Reservation any claim for reimbursement of the cost to the United States of carrying out this Act and the Kickapoo Tribe Water Rights Settlement Agreement; and (2) no assessment of any Indian-owned land located within the Reservation shall be made regarding that cost. (d) Effect on current law Nothing in this section affects any provision of law (including regulations) in effect on the day before the date of enactment of this Act with respect to pre-enforcement review of any Federal environmental enforcement action. (e) No use of condemnation or eminent domain Land or interests in land may not be acquired by condemnation or eminent domain under this Act or for the purposes of this Act.