Kickapoo Tribe in Kansas Water Rights Settlement Act

II 116TH CONGRESS 1ST SESSION S. 1977 To approve the Kickapoo Tribe Water Rights Settlement Agreement, and for other purposes. 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Kickapoo Tribe in Kansas Water Rights Settlement 5 Act’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 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. VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 1977 IS 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. SEC. 2. PURPOSES. 1 The purposes of this Act are— 2 (1) to achieve a fair, equitable, and final settle- 3 ment of claims to water rights in the State of Kan- 4 sas for— 5 (A) the Kickapoo Tribe of Indians of the 6 Kickapoo Reservation in Kansas; and 7 (B) the United States, for the benefit of 8 the Tribe and its members and allottees; 9 (2) to authorize, ratify, and confirm the Kick- 10 apoo Tribe Water Rights Settlement Agreement per- 11 taining to the Tribal water right, entered into by the 12 Tribe and the State of Kansas, to the extent that 13 the Settlement Agreement is consistent with this 14 Act; 15 (3) to authorize and direct the Secretary— 16 (A) to execute the Settlement Agreement; 17 and 18 (B) to take any other action necessary to 19 carry out the Settlement Agreement in accord- 20 ance with this Act; and 21 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 1977 IS (4) to direct the Natural Resources Conserva- 1 tion Service of the Department of Agriculture to 2 take certain actions under the authority of the Wa- 3 tershed Protection and Flood Prevention Act (16 4 U.S.C. 1001 et seq.) and other actions consistent 5 with this Act. 6 SEC. 3. DEFINITIONS. 7 In this Act: 8 (1) ACT.—The term ‘‘Act’’ means the Act of 9 Congress to authorize the United States to enter 10 into the Kickapoo Tribe Water Rights Settlement 11 Agreement and to execute the obligations set forth 12 herein, and for other purposes set forth herein. 13 (2) ALLOTTED LANDS.—The term ‘‘allotted 14 lands’’ means lands within the boundaries of the 15 Reservation that were allotted to individual Kick- 16 apoo Tribe members in accordance with a treaty or 17 Federal statute, and that are held in trust by the 18 United States for the benefit of one or more mem- 19 bers or successors in interest thereto. 20 (3) ALLOTTEE.—The term ‘‘allottee’’ means an 21 individual Indian who holds a beneficial real prop- 22 erty interest in an allotment of Indian land that is— 23 (A) located within the Reservation; and 24 (B) held in trust by the United States. 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 1977 IS (4) COURT.—The term ‘‘Court’’ means the 1 United States District Court for the District of Kan- 2 sas unless otherwise specified herein. 3 (5) DELAWARE RIVER BASIN.—The term 4 ‘‘Delaware River Basin’’ means that area of land, 5 depicted on the map attached as Exhibit 1 to the 6 Kickapoo Tribe Water Rights Settlement Agree- 7 ment. 8 (6) ENFORCEABILITY DATE.—The term ‘‘en- 9 forceability date’’ means the date on which the Sec- 10 retary publishes in the Federal Register the state- 11 ment of findings described in section 6(c). 12 (7) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 13 has the meaning given the term ‘‘Indian tribe’’ in 14 section 4 of the Indian Self-Determination and Edu- 15 cation Assistance Act (25 U.S.C. 5304). 16 (8) KANSAS WATER RIGHTS.—The term ‘‘Kan- 17 sas water rights’’ means a property right in the use 18 of water obtained under Kansas law. 19 (9) KICKAPOO TRIBE WATER RIGHTS SETTLE- 20 MENT AGREEMENT; SETTLEMENT AGREEMENT.— 21 The terms ‘‘Kickapoo Tribe Water Rights Settle- 22 ment Agreement’’ and ‘‘Settlement Agreement’’ 23 mean the Agreement executed by and between the 24 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 1977 IS Tribe and the State on September 9, 2016, as 1 amended to conform to this Act, as applicable. 2 (10) MEMBER.—The term ‘‘member’’ means 3 any person duly enrolled as a member of the Tribe. 4 (11) RESERVATION.—The term ‘‘Reserva- 5 tion’’— 6 (A) means the land depicted on the map 7 attached to the Settlement Agreement as Ex- 8 hibit 1; and 9 (B) shall be used solely for the purposes of 10 the Settlement Agreement, this Act, and any 11 judgment or decree issued by the Court approv- 12 ing the Settlement Agreement. 13 (12) SECRETARY.—The term ‘‘Secretary’’ 14 means the Secretary of the Interior. 15 (13) STATE.—The term ‘‘State’’ means the 16 Kansas State government and all of its officers, 17 agents, agencies, departments, and divisions. 18 (14) TRIBAL WATER RIGHT.—The term ‘‘Tribal 19 water right’’ means the water rights ratified, con- 20 firmed, and declared to be valid for the benefit of 21 the Tribe and its members and allottees, as set forth 22 and described in section 5. 23 (15) TRIBE.—The term ‘‘Tribe’’ means the 24 Kickapoo Tribe of Indians of the Kickapoo Reserva- 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 1977 IS tion in Kansas, a federally recognized sovereign In- 1 dian Tribe that functions as a customary and tradi- 2 tional Indian Tribe, acting on behalf of itself and its 3 members, but not acting on behalf of members in 4 their capacities as allottees. 5 (16) UNITED STATES.—The term ‘‘United 6 States’’ means the United States of America acting 7 in its capacity as trustee for the Tribe, its members, 8 and allottees, or as specifically stated or limited in 9 any given reference herein, in which case it means 10 the United States of America acting in the capacity 11 as set forth in said reference. 12 SEC. 4. RATIFICATION OF SETTLEMENT AGREEMENT. 13 (a) RATIFICATION.— 14 (1) IN GENERAL.—As modified by this Act, the 15 Settlement Agreement is authorized, ratified, and 16 confirmed. 17 (2) AMENDMENTS.—Any amendment to the 18 Settlement Agreement is authorized, ratified, and 19 confirmed, to the extent such amendment is exe- 20 cuted to make the Settlement Agreement consistent 21 with this Act. 22 (b) EXECUTION.— 23 (1) IN GENERAL.—To the extent that the Set- 24 tlement Agreement does not conflict with this Act, 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 1977 IS the Secretary shall execute the Settlement Agree- 1 ment, including all exhibits to, or parts of, the Set- 2 tlement Agreement requiring the signature of the 3 Secretary. 4 (2) MODIFICATIONS.—Nothing in this Act pre- 5 cludes the Secretary from approving any modifica- 6 tion to exhibits to the Settlement Agreement that is 7 consistent with this Act, to the extent the modifica- 8 tion does not otherwise require congressional ap- 9 proval under section 2116 of the Revised Statutes 10 (25 U.S.C. 177) or other applicable provision of 11 Federal law. 12 (c) ENVIRONMENTAL COMPLIANCE.—In imple- 13 menting the Settlement Agreement, the Secretary shall 14 comply with all applicable provisions of— 15 (1) the National Environmental Policy Act of 16 1969 (42 U.S.C. 4321 et seq.); 17 (2) the Endangered Species Act of 1973 (16 18 U.S.C. 1531 et seq.); and 19 (3) all other applicable Federal environmental 20 laws. 21 SEC. 5. KICKAPOO TRIBE WATER RIGHTS. 22 (a) INTENT OF CONGRESS.—It is the intent of Con- 23 gress to provide to each allottee benefits that are equiva- 24 lent to, or exceed, the benefits allottees possess on the day 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 1977 IS before the date of enactment of this Act, taking into con- 1 sideration— 2 (1) the potential risks, cost, and time delay as- 3 sociated with litigation that would be resolved by the 4 Settlement Agreement and this Act; 5 (2) the availability of funding under this Act 6 and from other sources; 7 (3) the availability of water from the Tribal 8 water right; and 9 (4) the applicability of section 7 of the Act of 10 February 8, 1887 (25 U.S.C. 381), and this Act to 11 protect the interests of allottees. 12 (b) CONFIRMATION OF TRIBAL WATER RIGHT.— 13 (1) IN GENERAL.—A consumptive Tribal water 14 right of up to 4,705 acre-feet of water per year is 15 confirmed in accordance with the terms and condi- 16 tions of the Settlement Agreement. 17 (2) PRIORITY DATE.—Consistent with the Set- 18 tlement Agreement, the priority date of the Tribal 19 water right shall be October 24, 1832. 20 (3) USE.—The Tribe may use the Tribal water 21 right for any purpose set forth in the Settlement 22 Agreement, this Act, and applicable Federal law. 23 (c) TRUST STATUS OF TRIBAL WATER RIGHT.—The 24 Tribal water right— 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 1977 IS (1) shall be held in trust by the United States 1 on behalf of the Tribe and its members and allottees 2 in accordance with this section; and 3 (2) shall not be subject to forfeiture or aban- 4 donment. 5 (d) ALLOTTEES.— 6 (1) APPLICABILITY OF ACT OF FEBRUARY 8, 7 1887.—The provisions of section 7 of the Act of Feb- 8 ruary 8, 1887 (25 U.S.C. 381), relating to the use 9 of water for irrigation purposes shall apply to the 10 Tribal water right. 11 (2) ENTITLEMENT TO WATER.—Any entitle- 12 ment to water of an allottee under Federal law shall 13 be satisfied from the Tribal water right. 14 (3) ALLOCATIONS.—An allottee shall be entitled 15 to a just and equitable allocation of water for irriga- 16 tion. 17 (4) MEMBERS.—Members who do not own in- 18 terests in allotted land shall nonetheless be entitled 19 to the use of a portion of the Tribal water right pur- 20 suant to the terms and conditions of the Kickapoo 21 Tribe Water Rights Settlement Agreement and the 22 Tribal Water Code. 23 (5) CLAIMS.— 24 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 1977 IS (A) EXHAUSTION OF REMEDIES.—Before 1 asserting any claim against the United States 2 under section 7 of the Act of February 8, 1887 3 (25 U.S.C. 381), or any other applicable law, 4 an allottee shall exhaust remedies available 5 under the Tribal Water Code or other applica- 6 ble Tribal law. 7 (B) ACTION FOR RELIEF.—Following ex- 8 haustion of all remedies available under the 9 Tribal Water Code or other applicable tribal 10 law, an allottee may seek relief under section 7 11 of the Act of February 8, 1887 (25 U.S.C. 12 381), or other applicable law. 13 (6) AUTHORITY OF THE SECRETARY.—The Sec- 14 retary shall have the authority to protect the rights 15 of members or allottees in accordance with this sec- 16 tion. 17 (e) AUTHORITY OF TRIBE.— 18 (1) IN GENERAL.—Except as provided in para- 19 graph (3), the Tribe shall have authority to use, al- 20 locate, distribute, and lease the Tribal water right 21 for any use on the Reservation in accordance with 22 the Settlement Agreement, this Act, the Tribal 23 Water Code or other Tribal law, and applicable Fed- 24 eral law. 25 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 1977 IS (2) OFF-RESERVATION USE.—The Tribe may 1 allocate, distribute, and lease the Tribal water right 2 for off-Reservation use in accordance with the Set- 3 tlement Agreement, subject to the approval of the 4 Secretary. 5 (3) LEASES BY ALLOTTEES.— 6 (A) IN GENERAL.—An allottee may lease 7 any interest in land held by the allottee, to- 8 gether with any water rights determined to be 9 appurtenant to that interest in land, in accord- 10 ance with the Tribal Water Code. 11 (B) OFF-RESERVATION USE.—An allottee 12 may lease any water rights determined to be 13 appurtenant to its allotment for off-Reservation 14 in accordance with the Settlement Agreement, 15 subject to the approval of the Secretary. 16 (f) TRIBAL WATER CODE.— 17 (1) IN GENERAL.—Not later than 3 years after 18 the enforceability date, the Tribe shall enact a Trib- 19 al Water Code, that provides for— 20 (A) the management, regulation, and gov- 21 ernance of all uses of the Tribal water right in 22 accordance with the Settlement Agreement and 23 this Act; and 24 VerDate Sep 11 2014 02:19 Jun 29, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1977.IS S1977 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 1977 IS (B) establishment by the Tribe of condi- 1 tions, permit requirements, and other require- 2 ments for the allocation, distribution, diversion, 3 storage, and use of the Tribal water right in ac- 4 cordance with the Settlement Agreement and 5 this Act. 6 (2) INCLUSIONS.—Subject to the approval of 7 the Secretary, the Tribal Water Code shall provide— 8 (A) that any use of water by allottees shall 9 be satisfied with water from the Tribal water 10 right; 11 (B) a process by which an allottee may re- 12 quest that the Tribe provide water for irrigation 13 purposes in accordance with this Act, including 14 the provision of water under any allottee lease 15 under section 4 of the Act of June 25, 1910 16 (25 U.S.C. 403); 17 (C) that charges for delivery of water for 18 irrigation purposes for allottees shall be as- 19 sessed in accordance with section 7 of the Act 20 of February 8, 1887 (25 U.S.C. 381); 21 (D) a due process system for the consider- 22 ation and determination by the Tribe of any re- 23 quest by a member or allottee (or a successor 24 in interest to an allottee) for an allocation of 25 VerDate Sep 11 201 [Text truncated for display. 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