II 116th CONGRESS 1st Session S. 1977 IN THE SENATE OF THE UNITED STATES June 26, 2019 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; table of contents (a) Short title This Act may be cited as the Kickapoo Tribe in Kansas Water Rights Settlement Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Purposes. Sec. 3. Definitions. Sec. 4. Ratification of Settlement Agreement. Sec. 5. Kickapoo Tribe water rights. Sec. 6. Effect of Settlement Agreement and Act. Sec. 7. Water facilities. Sec. 8. Waiver and release of claims; retention of claims. Sec. 9. Enforceability date. Sec. 10. Judicial proceedings. Sec. 11. 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 State of Kansas for— (A) the Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas; and (B) the United States, for the benefit of the Tribe and its members and allottees; (2) to authorize, ratify, and confirm the Kickapoo Tribe Water Rights Settlement Agreement pertaining to the Tribal water right, entered into by the Tribe and the State of Kansas, to the extent that the Settlement Agreement is consistent with this Act; (3) to authorize and direct the Secretary— (A) to execute the Settlement Agreement; and (B) to take any other action necessary to carry out the 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 Indian who holds a beneficial real property interest in an allotment of Indian land 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. (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 Indian tribe 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; settlement agreement The terms Kickapoo Tribe Water Rights Settlement Agreement and Settlement Agreement mean the Agreement executed by and between the Tribe and the State on September 9, 2016, as amended to conform to this Act, as applicable. (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 Settlement Agreement as Exhibit 1; and (B) shall be used solely for the purposes of the Settlement Agreement, this Act, and any judgment or decree issued by the Court approving the Settlement Agreement. (12) Secretary The term Secretary means the Secretary of the Interior. (13) State The term State means the Kansas State government and all of its officers, agents, agencies, departments, and divisions. (14) Tribal water right The term Tribal water right 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 of Indians of the Kickapoo Reservation 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. (16) United States The term United States means the United States of America acting in its capacity as trustee for the Tribe, its members, and allottees, or as specifically stated or limited in any given reference herein, in which case it means the United States of America acting in the capacity as set forth in said reference. 4. Ratification of Settlement Agreement (a) Ratification (1) In general As modified by this Act, the Settlement Agreement is authorized, ratified, and confirmed. (2) Amendments Any amendment to the Settlement Agreement is authorized, ratified, and confirmed, to the extent such amendment is executed to make the Settlement Agreement consistent with this Act. (b) Execution (1) In general To the extent that the Settlement Agreement does not conflict with this Act, the Secretary shall execute the Settlement Agreement, including all exhibits to, or parts of, the Settlement Agreement requiring the signature of the Secretary. (2) Modifications Nothing in this Act precludes the Secretary from approving any modification to exhibits to the Settlement Agreement that is consistent with this Act, to the extent the modification does not otherwise require congressional approval under section 2116 of the Revised Statutes ( 25 U.S.C. 177 ) or other applicable provision of Federal law. (c) Environmental compliance In implementing the Settlement Agreement, the Secretary shall comply with all applicable provisions of— (1) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.); (2) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq.); and (3) all other applicable Federal environmental laws. 5. Kickapoo Tribe water rights (a) Intent of congress It is the intent of Congress to provide to each allottee benefits that are equivalent to, or exceed, the benefits allottees possess on the day before 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 Settlement Agreement and this Act; (2) the availability of funding under this Act and from other sources; (3) the availability of water from the Tribal water right; and (4) 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 right (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 Settlement Agreement. (2) Priority date Consistent with the Settlement Agreement, the priority date of the Tribal water right shall be October 24, 1832. (3) Use The Tribe may use the Tribal water right for any purpose set forth in the Settlement Agreement, this Act, and applicable Federal law. (c) Trust status of tribal water right The Tribal water right— (1) shall be held in trust by the United States on behalf of the Tribe and its members and allottees in accordance with this section; and (2) shall 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 right. (2) Entitlement to water Any entitlement to water of an allottee under Federal law shall be satisfied from the Tribal water right. (3) Allocations An allottee shall be entitled to a just and equitable allocation of water for irrigation. (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 right pursuant to the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement and the Tribal Water Code. (5) Claims (A) 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, an allottee shall exhaust remedies available under the Tribal Water Code or other applicable Tribal law. (B) Action for relief Following exhaustion of all remedies available under the Tribal Water Code or other applicable tribal law, an allottee may seek relief under section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), or other applicable law. (6) Authority of the secretary The Secretary shall have the authority to protect the rights of members or allottees in accordance with this section. (e) Authority of tribe (1) In general Except as provided in paragraph (3), the Tribe shall have authority to use, allocate, distribute, and lease the Tribal water right for any use on the Reservation in accordance with the Settlement Agreement, this Act, the Tribal Water Code or other Tribal law, and applicable Federal law. (2) Off-reservation use The Tribe may allocate, distribute, and lease the Tribal water right for off-Reservation use in accordance with the Settlement Agreement, subject to the approval of the Secretary. (3) 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, in accordance with the Tribal Water Code. (B) Off-reservation use An allottee may lease any water rights determined to be appurtenant to its allotment for off-Reservation in accordance with the Settlement Agreement, subject to the approval of the Secretary. (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 right in accordance with the Settlement Agreement and this Act; and (B) establishment by the Tribe of conditions, permit requirements, and other requirements for the allocation, distribution, diversion, storage, and use of the Tribal water right in accordance with the Settlement Agreement and this Act. (2) Inclusions Subject to the approval of the Secretary, the Tribal Water Code shall provide— (A) that any use of water by allottees shall be satisfied with water from the Tribal water right; (B) a process by which an allottee may request that the Tribe provide water for irrigation purposes in accordance with this Act, including the provision of water under any allottee lease under section 4 of the Act of June 25, 1910 ( 25 U.S.C. 403 ); (C) 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 ); (D) a due process system for the consideration and determination by the Tribe of any request by a member or allottee (or a successor in interest to an allottee) for an allocation of water for irrigation 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 to the quantity of water allocated to land of the allottee, shall exhaust all remedies available to the member or allottee under Tribal law before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(5). (3) Action by secretary (A) In general During the period beginning on the date of enactment of this Act and ending on the date on which a Tribal Water Code described in paragraphs (1) and (2) is enacted, the Secretary shall administer, with respect to the rights of allottees, the Tribal water right in accordance with this Act. (B) Approval The Tribal Water Code described in paragraphs (1) and (2) shall not be valid unless— (i) the provisions of the Tribal Water Code required by paragraph (2) are approved by the Secretary; and (ii) each amendment to the Tribal Water Code that affects a right of an allottee is approved by the Secretary. (C) Approval period The Secretary shall approve or disapprove the Tribal Water Code or an amendment to the Tribal Water Code within a reasonable period of time after the date on which the Tribe submits the Tribal Water Code or amendment to the Secretary for approval. (g) Administration (1) No alienation The Tribe shall not permanently alienate any portion of the Tribal water right. (2) Purchases or grants of land from indians An authorization provided by this Act for the allocation, distribution, leasing, or other arrangement entered into pursuant to this Act shall be considered to satisfy any requirement for authorization of the action by treaty or convention imposed by section 2116 of the Revised Statutes ( 25 U.S.C. 177 ). (3) Prohibition on forfeiture The non-use of all or any portion of the Tribal water right by a lessee or contractor shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Tribal water right. (h) Effect Except as otherwise expressly 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 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 Settlement Agreement and other exhibits referenced therein and attached thereto, and this Act. (b) Effect of Settlement Agreement and Act Nothing in the Settlement Agreement or this Act— (1) affects the ability of the United States, acting as sovereign, to take action 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 any other party pursuant to a Federal law regarding health, safety, or the environment; or (C) to conduct judicial review of a 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 Settlement Agreement or any of the exhibits to the 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. 7. Water facilities (a) In general 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 Plan, 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, to make recommendations to Congress with respect to material alterations or changes in the Upper Delaware and Tributaries Watershed Plan necessary to effectuate, in part, the Tribal water right approved, ratified, and confirmed by the Kickapoo Tribe Water Rights Settlement Agreement and this Act. (b) No duty The enactment of this Act does not impose a duty or otherwise obligate the United States to appropriate funds, plan, design, or take any other action to construct any infrastructure. Any appropriations for infrastructure and any matters related to the Agreement and this Act will be considered by Congress following receipt of the recommendations for material changes or alterations in the Upper Delaware and Tributaries Watershed Plan referenced herein. 8. Waiver and release of claims; retention of claims (a) Claims by the Tribe and its Members and Allottees and the United States on Behalf of the Tribe and its Members and Allottees In return for recognition of the Tribal water right and other benefits set forth in the Settlement Agreement and this Act, including the commitments of the other parties hereto, the Tribe, on behalf of itself and its members and allottees, and the United States acting in its capacity as trustee for the Tribe and its members and allottees agree to execute a waiver and release of claims against the other parties to the Settlement Agreement from— (1) all claims for water rights in the Delaware River Basin that the Tribe or the United States acting in its capacity as trustee for the Tribe asserted or could have asserted in any proceeding up to and including the date the Settlement Agreement becomes effective, except to the extent such rights are recognized in the Settlement Agreement; (2) all claims for damages, losses, or 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 that accrued at any time up to and including the effective date; and (3) all claims against the State of Kansas, its agencies, or employees. (b) Claims by the tribe against the United States The Tribe, on behalf of itself and its members and allottees, as part of the performance of the obligations of the Tribe under the Settlement Agreement and this Act, agrees to execute a waiver and release of the following: (1) All claims against the United States, its agents, or employees relating to claims for water rights in or water of the Delaware River Basin that the United States acting in its capacity as trustee for the Tribe asserted or could have asserted in any proceeding. (2) All claims against the United States, its agents, or employees relating to damages, losses, or injuries to water, water rights, land or natural resources due to the loss of water or water rights (including damages, losses, or injuries to hunting, fishing, gathering, or cultural rights due to the loss of water or water rights, claims relating to interference with, diversion, or taking of water or water rights, or claims relating to failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) in the Delaware River Basin that first accrued at any time up to and including the enforcement date, except such claims are not waived until such time as appropriations for water related infrastructure for the Upper Delaware and Tributaries Watershed Plan referenced in section 7 are paid, and then to the extent of the amount of the appropriations. (3) All claims against the United States, its agents, or employees. (c) Reservation and retention of rights Notwithstanding the waivers and releases described in this section, the Tribe on behalf of itself and its members and allottees, and the United States acting in its capacity as trustee for the Tribe and its members and allottees, retain— (1) all claims for enforcement of the Settlement Agreement; (2) all claims against persons other than the parties to the Settlement Agreement for damages, losses, or 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; (3) all rights to use and protect water rights acquired after the date of enactment of this Act; (4) all claims relating to activities affecting the quality of water, including claims the Tribe might have under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.) (including claims for damages to natural resources), the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.), the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.), and regulations implementing those Acts; (5) to the extent not waived by court order and related joint stipulation that the Tribe executed with the United States in 2012 as part of the litigation styled Nez Perce Tribe et al. v. Salazar et al., No. 06–cv–2239 (D.D.C. Apr. 11, 2012) all claims relating to damages, losses, or injuries to land or natural resources not due to the loss of water or water rights (including hunting, fishing, gathering, or cultural rights); and (6) all rights, remedies, privileges, immunities, powers, and claims not specifically waived and released pursuant to the Settlement Agreement. (d) Effect Nothing in the Settlement Agreement— (1) affects the ability of the United States acting in its sovereign capacity to take actions authorized by law, including any law relating to health, safety, or the environment, including the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq.) (including claims for damages to natural resources), the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.), and the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq.), and regulations implementing those Acts; (2) affects the ability of the United States to take actions acting in its capacity as trustee for any other Indian tribe or allottee; and (3) waives any claim of a Member of the Tribe in an individual capacity that does not derive from a right of the Tribe. 9. Enforceability date (a) In general The Settlement Agreement and waivers under section 8 shall take effect and be enforceable on the date on which the Secretary publishes in the Federal Register a statement of findings that— (1) the Settlement Agreement, as amended to conform with this Act, has been executed by the Secretary of the Interior, the State, and the Tribe; and (2) the section 8 waivers and releases, except those in section 8(b)(2), have been executed. (b) Term of the agreement The term of the Settlement Agreement shall commence on the effective date and shall continue perpetually. 10. Judicial proceedings Upon the date of enactment of this Act, the judicial proceeding described in Article 10 of the Settlement Agreement shall be and is hereby authorized to be commenced. 11. 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 ), nothing in this Act waives the sovereign immunity of the United States. (b) Performance by the United States Performance by the United States of its obligations under the Settlement Agreement that depend upon the appropriation of funds by Congress and the disbursement of such funds shall be contingent on such appropriation and disbursement. No liability that depends upon the appropriation of such funds shall accrue to the United States for failure to perform an obligation under the Settlement Agreement where funds necessary to enable such performance are not appropriated or paid. (c) 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. (d) 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 Settlement Agreement; and (2) no assessment of any Indian-owned land located within the Reservation shall be made regarding that cost. (e) 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. (f) 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.