ARP19330

S.L.C.

116TH CONGRESS
1ST SESSION

S. ll

To protect access to water for all Montanans, and for other purposes.

IN THE SENATE OF THE UNITED STATES
llllllllll
Mr. DAINES (for himself and Mr. TESTER) introduced the following bill; which
was read twice and referred to the Committee on llllllllll

A BILL
To protect access to water for all Montanans, and for other
purposes.
1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,
3
4

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Montana Water Rights

5 Protection Act’’.
6
7

SEC. 2. PURPOSES.

The purposes of this Act are—

8

(1) to achieve a fair, equitable, and final settle-

9

ment of claims to water rights in the State of Mon-

10

tana, and in recognition of article I, and section 3

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1

of article IX, of the Montana State Constitution

2

for—

3

(A) the Confederated Salish and Kootenai

4

Tribes of the Flathead Indian Reservation; and

5

(B) the United States, for the benefit of

6

the Tribes and allottees;

7

(2) to authorize, ratify, and confirm the water

8

rights compact entered into by the Tribes and the

9

State, to the extent that the Compact is consistent

10
11
12

with this Act;
(3) to authorize and direct the Secretary of the
Interior—

13

(A) to execute the Compact; and

14

(B) to take any other action necessary to

15

carry out the Compact in accordance with this

16

Act; and

17

(4) to authorize funds necessary for the imple-

18

mentation of—

19

(A) the Compact; and

20

(B) this Act.

21

SEC. 3. DEFINITIONS.

22

In this Act:

23

(1) ALLOTTEE.—The term ‘‘allottee’’ means an

24

individual who holds a beneficial real property inter-

25

est in an allotment of Indian land that is—

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(A) located within the Reservation; and

2

(B) held in trust by the United States.

3

(2) BISON.—The term ‘‘bison’’ means North

4

American plains bison.

5

(3) COMPACT.—The term ‘‘Compact’’ means—

6

(A) the water rights compact entered into

7

and ratified, as applicable, by the Confederated

8

Salish and Kootenai Tribes, the State, and the

9

United States, as contained in section 85–20–

10

1901 of the Montana Code Annotated (2017),

11

including any appendix or exhibit to that com-

12

pact; and

13

(B) any amendment to the compact re-

14

ferred to in subparagraph (A) (including an

15

amendment to an appendix or exhibit) that is

16

executed to ensure that the Compact is con-

17

sistent with this Act.

18

(4) DAMAGES

REPORT.—The

term ‘‘Damages

19

Report’’ means the report entitled ‘‘Damages of the

20

Confederated Salish and Kootenai Tribes Due to Ac-

21

tions By the United States’’, volume I (March

22

2011), volume II (March 2011), volume III (October

23

2011), and the final supplement and economic valu-

24

ation (February 2016), which is on file at the De-

25

partment of Justice.

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(5) ENFORCEABILITY

DATE.—The

term ‘‘en-

2

forceability date’’ means the date described in sec-

3

tion 10(b).

4

(6) FLATHEAD

5

(A) IN

INDIAN IRRIGATION PROJECT.—

GENERAL.—The

term ‘‘Flathead

6

Indian irrigation project’’ means the Federal ir-

7

rigation project developed by the United States

8

to irrigate land within the Reservation pursuant

9

to—

10

(i) the Act of April 23, 1904 (33 Stat.

11

302, chapter 1495); and

12

(ii) the Act of May 29, 1908 (35 Stat.

13

444, chapter 216).

14

(B) INCLUSIONS.—The term ‘‘Flathead In-

15

dian irrigation project’’ includes—

16

(i) all land and any reservoir, ease-

17

ment, right-of-way, canal, ditch, lateral, or

18

any other facility of the project referred to

19

in subparagraph (A) (regardless of location

20

on or off the Reservation); and

21

(ii) any headgate, pipeline, pump,

22

building, heavy equipment, vehicle, sup-

23

plies, record, copy of a record, or any other

24

physical, tangible object of real or personal

25

property used in the management and op-

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eration of the project referred to in sub-

2

paragraph (A).

3

(7) HUNGRY

HORSE DAM.—The

term ‘‘Hungry

4

Horse Dam’’ means the dam that is a part of the

5

Hungry Horse Project.

6

(8) HUNGRY

HORSE

PROJECT.—The

term

7

‘‘Hungry Horse Project’’ means the project author-

8

ized to be carried out by the Secretary under the Act

9

of June 5, 1944 (43 U.S.C. 593a et seq.).

10

(9) HUNGRY

HORSE RESERVOIR.—The

term

11

‘‘Hungry Horse Reservoir’’ means the reservoir that

12

is a part of the Hungry Horse Project.

13

(10) INDIAN

TRIBE.—The

term ‘‘Indian tribe’’

14

has the meaning given the term in section 4 of the

15

Indian Self-Determination and Education Assistance

16

Act (25 U.S.C. 5304).

17

(11) LAW

OF

ADMINISTRATION.—The

term

18

‘‘Law of Administration’’ means the Unitary Admin-

19

istration and Management Ordinance, as set forth in

20

Appendix 4 of the Compact.

21

(12) RESERVATION.—

22

(A) IN

GENERAL.—The

term ‘‘Reserva-

23

tion’’ means all land within the exterior bound-

24

aries of the Indian reservation established

25

under the Treaty between the United States

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and the Flathead, Kootenay, and Upper Pend

2

d’Oreilles Indians, concluded at Hell Gate July

3

16, 1855 (12 Stat. 975), notwithstanding the

4

issuance of any patent on the Reservation.

5

(B) INCLUSIONS.—The term ‘‘Reserva-

6

tion’’ includes any right-of-way through the

7

Reservation.

8

(13)

9
10

term

‘‘Secretary’’

means the Secretary of the Interior.
(14) STATE.—

11
12

SECRETARY.—The

(A) IN

GENERAL.—The

term ‘‘State’’

means the State of Montana.

13

(B) INCLUSIONS.—The term ‘‘State’’ in-

14

cludes all officers, agencies, departments, and

15

political subdivisions of the State.

16

(15) TRIBAL

WATER RIGHT.—The

term ‘‘Tribal

17

Water Right’’ means the water right of the Tribes,

18

as established in—

19

(A) the Compact; and

20

(B) section 5.

21

(16) TRIBES.—

22

(A) IN

GENERAL.—The

term ‘‘Tribes’’

23

means the Confederated Salish and Kootenai

24

Tribes of the Flathead Reservation of Montana.

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(B) INCLUSIONS.—The term ‘‘Tribes’’ in-

2

cludes all officers, agencies, and departments of

3

the Tribes.

4

(17) TRUST

FUND.—The

term ‘‘Trust Fund’’

5

means the Séliš-Qlispé Ksanka Settlement Trust

6

Fund established under section 8(a).

7
8
9
10

SEC. 4. RATIFICATION OF COMPACT.

(a) RATIFICATION.—
(1) IN

GENERAL.—As

modified by this Act, the

Compact is authorized, ratified, and confirmed.

11

(2) AMENDMENTS.—Any amendment to the

12

Compact is authorized, ratified, and confirmed, to

13

the extent that the amendment is executed to ensure

14

that the Compact is consistent with this Act.

15

(b) EXECUTION.—

16

(1) IN

GENERAL.—To

the extent that the Com-

17

pact does not conflict with this Act, the Secretary

18

shall execute the Compact, including all exhibits to,

19

appendices to, and parts of the Compact requiring

20

the signature of the Secretary.

21

(2) MODIFICATIONS.—Nothing in this Act pre-

22

cludes the Secretary from approving a modification

23

to an appendix or exhibit to the Compact that is

24

consistent with this Act, to the extent that the modi-

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fication does not otherwise require congressional ap-

2

proval under—

3
4

(A) section 2116 of the Revised Statutes
(25 U.S.C. 177); or

5
6
7

(B) any other applicable Federal law.
(c) ENVIRONMENTAL COMPLIANCE.—
(1) IN

GENERAL.—In

implementing the Com-

8

pact and this Act, the Secretary and the Tribes shall

9

comply with—

10
11

(A) the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.);

12
13

(B) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.); and

14

(C) all other applicable environmental laws

15

(including regulations).

16

(2) EFFECT

17

(A) IN

OF EXECUTION.—
GENERAL.—The

execution of the

18

Compact by the Secretary under this section

19

shall not constitute a major Federal action for

20

purposes of the National Environmental Policy

21

Act of 1969 (42 U.S.C. 4321 et seq.).

22

(B) COMPLIANCE.—The Secretary and the

23

Tribes shall carry out all Federal compliance

24

activities necessary to implement the Compact

25

and this Act.

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1

(d) PUBLIC AVAILABILITY.—As provided in articles

2 IV.I.b (relating to hearings), IV.I.c (relating to the em3 ployment of a water engineer), and IV.I.7.e (relating to
4 Board records) of the Compact, and in recognition of sec5 tion 9 of article II of the Montana State Constitution, all
6 records of the Flathead Reservation Water Management
7 Board and the Water Engineer employed by the Board
8 shall be open to public inspection.
9
10

SEC. 5. TRIBAL WATER RIGHT.

(a) INTENT

OF

CONGRESS.—It is the intent of Con-

11 gress to provide to each allottee benefits that are equiva12 lent to, or that exceed, the benefits possessed by the
13 allottees on the day before the date of enactment of this
14 Act, taking into consideration—
15

(1) the potential risks, cost, and time delay as-

16

sociated with litigation that would be resolved by the

17

Compact and this Act;

18
19
20
21

(2) the availability of funding under this Act
and from other sources;
(3) the availability of water from the Tribal
Water Right; and

22

(4) the applicability of section 7 of the Act of

23

February 8, 1887 (25 U.S.C. 381), and this Act to

24

protect the interests of allottees.

25

(b) CONFIRMATION OF TRIBAL WATER RIGHT.—

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2
3
4

(1) IN

GENERAL.—The

Tribal Water Right is

ratified, confirmed, and declared to be valid.
(2) USE.—Any use of the Tribal Water Right
shall be subject to the terms and conditions of—

5

(A) the Compact; and

6

(B) this Act.

7

(3) CONFLICT.—In the event of a conflict be-

8

tween the Compact and this Act, the provisions of

9

this Act shall control.

10

(c) TRUST STATUS

OF

TRIBAL WATER RIGHT.—The

11 Tribal Water Right—
12

(1) shall be held in trust by the United States

13

for the use and benefit of the Tribes and the

14

allottees in accordance with this Act; and

15

(2) shall not be subject to forfeiture or aban-

16

donment.

17

(d) ALLOTTEES.—

18

(1) APPLICABILITY

OF ACT OF FEBRUARY 8,

19

1887.—The

20

ruary 8, 1887 (25 U.S.C. 381), relating to the use

21

of water for irrigation purposes shall apply to the

22

Tribal Water Right.

23

provisions of section 7 of the Act of Feb-

(2) ENTITLEMENTS

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(A) IN

GENERAL.—Any

entitlement to

2

water of an allottee under Federal law shall be

3

satisfied from the Tribal Water Right.

4

(B) WATER

FOR IRRIGATION.—Each

allot-

5

tee shall be entitled to a just and equitable allo-

6

cation of water for irrigation purposes, to be

7

enforceable under paragraph (3)(B).

8

(3) CLAIMS.—

9

(A) EXHAUSTION

OF REMEDIES.—Before

10

asserting any claim against the United States

11

under section 7 of the Act of February 8, 1887

12

(25 U.S.C. 381), or any other applicable law,

13

an allottee shall exhaust remedies available

14

under—

15

(i) the Law of Administration; or

16

(ii) other applicable law.

17

(B) WATER

FOR IRRIGATION.—After

the

18

exhaustion of all remedies available under the

19

Law of Administration or other applicable law,

20

an allottee may seek relief under section 7 of

21

the Act of February 8, 1887 (25 U.S.C. 381),

22

or other applicable law, to seek a just and equi-

23

table allocation of water for irrigation purposes

24

under paragraph (2)(B).

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(4) AUTHORITY

OF

SECRETARY.—The

Sec-

2

retary shall have the authority to protect the rights

3

of allottees in accordance with this section.

4

(e) AUTHORITY OF TRIBES.—

5

(1) IN

GENERAL.—The

Tribes shall have the

6

authority to allocate, distribute, and lease the Tribal

7

Water Right for any use on the Reservation in ac-

8

cordance with—

9

(A) the Compact;

10

(B) the Law of Administration;

11

(C) this Act; and

12

(D) applicable Federal law.

13

(2) OFF-RESERVATION

USE.—The

Tribes may

14

allocate, distribute, and lease the Tribal Water Right

15

for off-Reservation use in the State in accordance

16

with the Compact, subject to the approval of the

17

Secretary.

18

(3) LAND

LEASES BY ALLOTTEES.—Notwith-

19

standing paragraph (1), an allottee may lease any

20

interest in land held by the allottee, together with

21

any water right determined to be appurtenant to the

22

interest in land, in accordance with the Law of Ad-

23

ministration.

24

(f) LAW OF ADMINISTRATION.—

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(1) IN

GENERAL.—During

the period beginning

2

on the date of enactment of this Act and ending on

3

the date on which the Law of Administration be-

4

comes effective on the Reservation, the Secretary

5

shall administer, with respect to the rights of

6

allottees, the Tribal Water Right in accordance with

7

this Act.

8

(2) APPROVAL.—

9

(A) IN

10

GENERAL.—The

Law of Adminis-

tration is approved.

11

(B) REGISTRATIONS.—As provided in sec-

12

tions 3 and 4 of article IX of the Montana

13

State Constitution and section 1–1–108 of the

14

Law of Administration, all registrations shall be

15

provided to the department of natural resources

16

and conservation of the State, to be entered

17

into the water rights database of the depart-

18

ment.

19

(C) AMENDMENTS.—An amendment to the

20

Law of Administration that affects a right of

21

an allottee shall not be valid unless the amend-

22

ment is approved by the Secretary in accord-

23

ance with this subsection.

24

(3) APPROVAL

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(A) IN

GENERAL.—Subject

to subpara-

2

graph (B), the Secretary shall approve or dis-

3

approve an amendment to the Law of Adminis-

4

tration by not later than 180 days after the

5

date of ratification of the Law of Administra-

6

tion by the Tribes and the State.

7

(B) EXTENSION.—The deadline described

8

in subparagraph (A) may be extended by the

9

Secretary after consultation with the Tribes.

10

(4) CONFLICT.—In the event of a conflict be-

11

tween the Law of Administration and this Act, the

12

provisions of this Act shall control.

13

(g) ADMINISTRATION.—

14

(1) ALIENATION.—The Tribes shall not perma-

15

nently alienate any portion of the Tribal Water

16

Right.

17

(2) PURCHASES

OR GRANTS OF LAND FROM IN-

18

DIANS.—An

19

an allocation, distribution, lease, or any other ar-

20

rangement shall be considered to satisfy any require-

21

ment for authorization of the action by treaty or

22

convention under section 2116 of the Revised Stat-

23

utes (25 U.S.C. 177).

24
25

authorization provided by this Act for

(3) PROHIBITION

ON FORFEITURE.—The

non-

use of all, or any portion of, the Tribal Water Right

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by a lessee or contractor shall not result in the for-

2

feiture, abandonment, relinquishment, or other loss

3

of all, or any portion of, the Tribal Water Right.

4

(h) EFFECT.—Except as otherwise expressly provided

5 in this section, nothing in this Act—
6

(1) authorizes any action by an allottee against

7

any individual or entity, or against the Tribes, under

8

Federal, State, Tribal, or local law; or

9

(2) alters or affects the status of any action

10

brought pursuant to section 1491(a) of title 28,

11

United States Code.

12

SEC. 6. STORAGE ALLOCATION FROM HUNGRY HORSE RES-

13
14

ERVOIR.

(a) STORAGE ALLOCATION

TO

TRIBES.—The Sec-

15 retary shall allocate to the Tribes 90,000 acre-feet per
16 year, as measured at the Hungry Horse Dam, of storage
17 water in Hungry Horse Reservoir for use by the Tribes
18 for any beneficial purpose on or off the Reservation under
19 a water right held by the United States and managed by
20 the Bureau of Reclamation.
21
22

(b) TREATMENT.—
(1) IN

GENERAL.—The

allocation under sub-

23

section (a) shall be considered to be part of the

24

Tribal Water Right.

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(2) ADMINISTRATION.—The Tribes shall admin-

2

ister the water allocated under subsection (a) in ac-

3

cordance with, and subject to the limitations of, the

4

Compact and this Act.

5

(c) ALLOCATION AGREEMENT.—

6

(1) IN

GENERAL.—As

a condition of receiving

7

the allocation under subsection (a), the Tribes shall

8

enter into an agreement with the Secretary to estab-

9

lish the terms and conditions of the allocation, in ac-

10

cordance with the Compact and this Act.

11

(2) INCLUSIONS.—The agreement under para-

12

graph (1) shall include provisions establishing that—

13

(A) the agreement shall be without a limit

14

as to a term;

15

(B) the Tribes, and not the United States,

16

shall be entitled to all consideration due to the

17

Tribes under any lease, contract, or agreement

18

entered into by the Tribes pursuant to sub-

19

section (d);

20
21

(C) the United States shall have no obligation to monitor, administer, or account for—

22

(i) any funds received by the Tribes

23

as consideration under any lease, contract,

24

or agreement entered into by the Tribes

25

pursuant to subsection (d); or

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(ii) the expenditure of those funds;

2

(D) if the capacity or function of any facil-

3

ity of Hungry Horse Reservoir or Hungry

4

Horse Dam is significantly reduced, or is antici-

5

pated to be significantly reduced, for an ex-

6

tended period of time, the Tribes shall have the

7

same storage rights as other storage contrac-

8

tors with respect to the allocation under sub-

9

section (a);

10

(E) the costs associated with the construc-

11

tion and operation of the storage facilities at

12

Hungry Horse Reservoir and Hungry Horse

13

Dam allocable to the Tribes shall be nonreim-

14

bursable;

15

(F) no water service capital charge shall be

16

due or payable for the agreement or any water

17

allocated under subsection (a), regardless of

18

whether that water is delivered for use by the

19

Tribes or under a lease, contract, or by an

20

agreement entered into by the Tribes pursuant

21

to subsection (d);

22

(G) the Tribes shall not be required to

23

make payments to the United States for the

24

agreement or any water allocated under sub-

25

section (a), except for each acre-foot of stored

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water leased or transferred for industrial pur-

2

poses;

3

(H) for each acre-foot of stored water

4

leased by the Tribes for industrial purposes—

5

(i) the Tribes shall pay annually to

6

the United States an amount sufficient to

7

cover the proportionate share of the annual

8

operation, maintenance, and replacement

9

costs for the Hungry Horse Project allo-

10

cable to that quantity of water; and

11

(ii) the annual payments of the Tribes

12

shall be reviewed and adjusted, as appro-

13

priate, to reflect the actual operation,

14

maintenance, and replacement costs for the

15

Hungry Horse Project; and

16

(I) the costs described in subparagraphs

17

(G) and (H) shall not apply to any lease or

18

transfer for industrial purposes to—

19

(i) any entity of the Tribes; or

20

(ii) any entity wholly owned by the

21
22

Tribes.
(d) AGREEMENTS

BY

TRIBES.—The Tribes may use,

23 lease, contract, exchange, or enter into other agreements
24 for use of the water allocated under subsection (a) if—

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(1) the water that is the subject of the agree-

2

ment is used within the Flathead Basin or the Clark

3

Fork Basin within the State; and

4

(2) the agreement does not permanently alien-

5

ate any portion of water allocated under subsection

6

(a).

7

(e) MITIGATION WATER.—The Tribes shall make

8 available not more than 11,000 acre-feet per year of the
9 water allocated under subsection (a) to the State, in ac10 cordance with the Compact.
11

(f) NO CARRY-OVER STORAGE.—The allocation under

12 subsection (a) shall not be increased by any year-to-year
13 carryover storage.
14

(g) DEVELOPMENT

AND

DELIVERY COSTS.—The

15 United States shall not be required to pay the cost of de16 veloping or delivering any water allocated under sub17 section (a).
18

(h) NEW USES.—Except as provided in article

19 III.C.1.c of the Compact, the Tribes shall not develop any
20 new use for the allocation under subsection (a) until the
21 date on which the agreement entered into under sub22 section (c) takes effect.
23

(i) EFFECTIVE DATE.—The allocation under sub-

24 section (a) takes effect on the enforceability date.

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1
2

SEC. 7. IRRIGATION ACTIVITIES.

(a) ACTIVITIES.—The Tribes may carry out the fol-

3 lowing activities relating to the Flathead Indian irrigation
4 project, in coordination with the Bureau of Indian Affairs:
5

(1) REHABILITATION

AND MODERNIZATION.—

6

Rehabilitation of structures, canals, and pumping fa-

7

cilities, including dam safety improvements, irriga-

8

tion facility upgrades that improve water manage-

9

ment and operational control at irrigation diversion

10

works, irrigation facility upgrades to reduce losses in

11

conveyance of water from irrigation sources of sup-

12

ply to irrigation points of use, planning, design, and

13

construction of additional pumping facilities, oper-

14

ational improvements to infrastructure within the

15

distribution network of the Flathead Indian irriga-

16

tion project, and reconstruction, replacement, and

17

automation at irrigation diversion works, lining of

18

open canals, and placement of open canals in pipe.

19

(2) MITIGATION,

RECLAMATION, AND RESTORA-

20

TION.—Mitigation,

21

streams, wetlands, banks, slopes, and wasteways

22

within, appurtenant to, or affected by the Flathead

23

Indian irrigation project.

24
25

reclamation, and restoration of

(3) ACQUISITION

OF INTERESTS.—Acquisition,

in accordance with subsection (e), of easements or

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other interests in real property necessary to carry

2

out any activity under this section.

3

(b) ENVIRONMENTAL COMPLIANCE.—Prior to the

4 commencement of any construction activity under sub5 section (a), the Tribes shall perform appropriate Federal
6 environmental compliance activities relating to the activ7 ity.
8

(c) TREATMENT.—Any activities carried out pursu-

9 ant to subsection (a) that result in improvements, addi10 tions, or modifications to the Flathead Indian irrigation
11 project, including the acquisition of any real property in12 terest, shall—
13
14

(1) become a part of the Flathead Indian irrigation project; and

15

(2) be recorded in the inventory of the Sec-

16

retary relating to the Flathead Indian irrigation

17

project.

18

(d) EASEMENTS AND RIGHTS-OF-WAY.—

19

(1)

20

WAY.—

21

TRIBAL

(A) IN

EASEMENTS

GENERAL.—On

AND

RIGHTS-OF-

request of the Sec-

22

retary, the Tribes shall grant, at no cost to the

23

United States, such easements and rights-of-

24

way over Tribal land as are necessary for con-

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1

struction relating to an activity under this sec-

2

tion.

3

(B)

JURISDICTION.—An

easement

or

4

right-of-way granted by the Tribes pursuant to

5

subparagraph (A) shall not affect in any respect

6

the civil or criminal jurisdiction of the Tribes

7

over the easement or right-of-way.

8

(2) LANDOWNER

9

WAY.—In

EASEMENTS AND RIGHTS-OF-

partial consideration for the construction

10

activities authorized by this section, and as a condi-

11

tion of receiving service from the Flathead Indian ir-

12

rigation project or the Mission Valley Power Project,

13

a landowner shall grant, at no cost to the United

14

States or the Tribes, such easements and rights-of-

15

way over the land of the landowner as may be nec-

16

essary for—

17
18

(A) a construction activity authorized by
this section; or

19

(B) the operation and maintenance of—

20

(i) the Flathead Indian irrigation

21

project; or

22
23

(ii) the Mission Valley Power Project.
(e) LAND ACQUIRED

BY

UNITED STATES

OR

24 TRIBES.—Any land acquired within the boundaries of the
25 Reservation by the United States on behalf of the Tribes,

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1 or by the Tribes on behalf of the Tribes, in connection
2 with the purposes of this Act shall be held in trust by
3 the United States for the benefit of the Tribes.
4
5
6

(f) COOPERATIVE OPERATION
OF

AND

MAINTENANCE

FLATHEAD INDIAN IRRIGATION PROJECT.—
(1) AGREEMENT

WITH SECRETARY.—On

receipt

7

of a joint request from the Tribes and 1 or more ir-

8

rigation districts within the Flathead Indian irriga-

9

tion project, the Secretary shall enter into an agree-

10

ment with the Tribes and the irrigation districts for

11

the cooperative operation and maintenance of the

12

Flathead Indian irrigation project, or any portion of

13

the Flathead Indian irrigation project.

14

(2) ESTABLISHMENT

15

(A) IN

OF ORGANIZATION.—

GENERAL.—In

lieu of entering into

16

an agreement under paragraph (1), the Tribes

17

and 1 or more irrigation districts within the

18

Flathead Indian irrigation project may jointly

19

establish an organization for the purpose of en-

20

tering into an agreement for the operation and

21

maintenance of the Flathead Indian irrigation

22

project under the Indian Self-Determination

23

and Education Assistance Act (25 U.S.C. 5301

24

et seq.).

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1

(B) TREATMENT.—An organization estab-

2

lished pursuant to subparagraph (A) shall be

3

considered to be a tribal organization (as de-

4

fined in section 4 of the Indian Self-Determina-

5

tion and Education Assistance Act (25 U.S.C.

6

5304)) for purposes of that Act.

7

(g) EFFECT.—Nothing in this section—

8

(1) alters any applicable law under which the

9

Bureau of Indian Affairs collects assessments or car-

10

ries out the operation and maintenance of the Flat-

11

head Indian irrigation project; or

12

(2) impacts the availability of amounts under

13

section 9.

14

(h) WATER SOURCE.—The source of the water for

15 the Flathead Indian irrigation project shall be determined
16 in accordance with article II(32) of the Compact as—
17
18

(1) consisting of the water right set forth in article III.C.1.a of the Compact;

19

(2) including any use of water for irrigation

20

and incidental purposes pursuant to an applicable

21

water service contract; and

22

(3) considered to be the source for the entitle-

23

ment to delivery of available irrigation water for the

24

assessed parcels, in accordance with article IV.D.2

25

of the Compact.

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1

SEC. 8. SÉLIŠ-QLISPÉ KSANKA SETTLEMENT TRUST FUND.

2

(a) ESTABLISHMENT.—The Secretary shall establish

3 a trust fund, to be known as the ‘‘Séliš-Qlispé Ksanka Set4 tlement Trust Fund’’, to be managed, invested, and dis5 tributed by the Secretary, and to remain available until
6 expended, consisting of the amounts deposited in the
7 Trust Fund under subsection (b), together with any inter8 est earned on those amounts, for the purpose of carrying
9 out this Act.
10

(b) DEPOSITS.—The Secretary shall deposit in the

11 Trust Fund the amounts made available pursuant to sec12 tion 9.
13

(c) MANAGEMENT AND INTEREST.—

14

(1) MANAGEMENT.—On receipt and deposit of

15

the funds into the Trust Fund, the Secretary shall

16

manage, invest, and distribute the amounts in ac-

17

cordance with the investment authority of the Sec-

18

retary under—

19
20

(A) the first section of the Act of June 24,
1938 (25 U.S.C. 162a);

21

(B) the American Indian Trust Fund Man-

22

agement Reform Act of 1994 (25 U.S.C. 4001

23

et seq.); and

24
25
26

(C) this section.
(2) INVESTMENT

EARNINGS.—In

addition to

the deposits under subsection (b), any investment
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1

earnings, including interest, credited to the amounts

2

in the Trust Fund are authorized to be appropriated

3

for use in accordance with subsection (g).

4

(d) AVAILABILITY OF AMOUNTS.—

5

(1) IN

GENERAL.—Amounts

appropriated to,

6

and deposited in, the Trust Fund (including any in-

7

vestment earnings) shall be made available to the

8

Tribes by the Secretary beginning on the enforce-

9

ability date, subject to the requirements of this sec-

10

tion.

11

(2) USE.—Notwithstanding paragraph (1), any

12

amounts deposited in the Trust Fund shall be avail-

13

able to the Tribes, on appropriation, for—

14

(A) the uses described in subsection (g)(1),

15

in accordance with Appendix 3.6 to the Com-

16

pact; and

17
18
19

(B) the uses described in subsection (g)(2).
(e) WITHDRAWALS.—
(1) IN

GENERAL.—The

Tribes may withdraw

20

any portion of the amounts in the Trust Fund on

21

approval by the Secretary of a Tribal management

22

plan submitted by the Tribes in accordance with the

23

American Indian Trust Fund Management Reform

24

Act of 1994 (25 U.S.C. 4001 et seq.).

25

(2) REQUIREMENTS.—

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1

(A) IN

GENERAL.—In

addition to the re-

2

quirements under the American Indian Trust

3

Fund Management Reform Act of 1994 (25

4

U.S.C. 4001 et seq.), the Tribal management

5

plan under paragraph (1) shall require that the

6

Tribes shall spend all amounts withdrawn from

7

the Trust Fund and any investment earnings

8

accrued through the investments under the

9

Tribal management plan in accordance with

10

this Act.

11

(B) ENFORCEMENT.—The Secretary may

12

carry out such judicial and administrative ac-

13

tions as the Secretary determines to be nec-

14

essary to enforce the Tribal management plan

15

to ensure that amounts withdrawn by the

16

Tribes from the Trust Fund pursuant to this

17

subsection are used in accordance with this Act.

18

(f) EFFECT.—Nothing in this Act provides to the

19 Tribes the right to judicial review of a determination by
20 the Secretary regarding whether to approve a Tribal man21 agement plan, except under subchapter II of chapter 5,
22 and chapter 7 of title 5, United States Code (commonly
23 known as the ‘‘Administrative Procedure Act’’).

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1

(g) USES.—Amounts in the Trust Fund shall be used

2 by the Tribes to implement the Compact, the Law of Ad3 ministration, and this Act for the following purposes:
4

(1) With respect to the Flathead Indian irriga-

5

tion project, rehabilitation, modernization, and res-

6

toration of damages to natural resources.

7

(2) The administration, implementation, and

8

management of the Tribal Water Right and the reg-

9

ulation and administration of water rights within the

10

Reservation under this Act, the Compact, and the

11

Law of Administration, and such infrastructure as is

12

necessary to meet programmatic needs.

13
14

(3) The acquisition of interests in real property
for purposes of paragraph (1).

15

(4) To implement the Tribal Water Right

16

through rehabilitation and improvement of agricul-

17

tural Indian land within the Reservation.

18
19
20
21

(5) To construct and rehabilitate livestock fencing on Indian land within the Reservation.
(6) To mitigate and control noxious weeds on
land within the Reservation.

22

(7) To plan, design, and construct improve-

23

ments to irrigation systems on land served by the

24

Flathead Indian irrigation project.

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1

(8) To install screens, barriers, passages, or

2

ladders to prevent fish entrainment in irrigation

3

ditches and canals within the Reservation.

4

(9) To plan, design, and construct irrigation fa-

5

cilities on Indian land within the Reservation that is

6

not served by the Flathead Indian irrigation project.

7

(10) To plan, design, construct, operate, main-

8

tain, and replace community water distribution and

9

wastewater treatment facilities on the Reservation.

10
11

(11) To develop geothermal water resources on
Indian land within the Reservation.

12

(12) To develop a cultural resources program

13

relating to permitting (including cultural, historical,

14

and archeological reviews, including training and

15

certifications) and related infrastructure necessary

16

to meet programmatic needs.

17
18

(13) To comply with Federal environmental
laws for any use authorized by this section.

19

(14) To repair, rehabilitate, or replace culverts,

20

bridges, and roads of the Flathead Indian irrigation

21

project and any public or Tribal culverts, bridges,

22

and roads that intersect with, or are otherwise lo-

23

cated within, the supply and distribution network of

24

the Flathead Indian irrigation project.

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30
1

(h) LIABILITY.—The Secretary shall not be liable for

2 the expenditure or investment of any amounts withdrawn
3 from the Trust Fund by the Tribes under this section.
4

(i) EXPENDITURE REPORTS.—Not less frequently

5 than annually, the Tribes shall submit to the Secretary
6 an expenditure report describing—
7
8

(1) the amount withdrawn from the Trust
Fund under this section; and

9

(2) any accomplishments resulting from the use

10

of a withdrawal under a Tribal management plan, in

11

accordance with this Act.

12

(j) OM&R COSTS.—Except as otherwise provided in

13 this Act, nothing in this Act affects any obligation of the
14 United States with respect to the operations, maintenance,
15 and repair of the Flathead Indian irrigation project.
16
17

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL.—There is authorized to be appro-

18 priated to the Secretary for deposit in the Trust Fund
19 $1,900,000,000, to remain available until expended, with20 drawn, or reverted to the general fund of the Treasury.
21
22
23

(b) FLUCTUATION IN COSTS.—
(1) IN

GENERAL.—Of

the amount authorized to

be appropriated under subsection (a)—

24

(A) $347,200,000 shall be increased or de-

25

creased, as appropriate, by such amounts as

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31
1

may be justified by reason of ordinary fluctua-

2

tions in costs occurring after the date of enact-

3

ment of this Act, as indicated by the Consumer

4

Price Index for All Urban Consumers West

5

Urban 50,000 to 1,500,000 index;

6

(B) $111,400,000 shall be increased or de-

7

creased, as appropriate, by such amounts as

8

may be justified by reasons of ordinary fluctua-

9

tions in costs occurring after the date of enact-

10

ment of this Act, as indicated by the Producer

11

Price Index for the Bureau of Labor Statistics;

12

and

13

(C) $1,441,400,000 shall be increased or

14

decreased, as appropriate, by such amounts as

15

may be justified by reason of ordinary fluctua-

16

tions in costs occurring after the date of enact-

17

ment of this Act, as indicated by the Bureau of

18

Reclamation Construction Costs Index–Com-

19

posite Trend.

20

(2)

REPETITION.—The

adjustment

process

21

under this subsection shall be repeated for each sub-

22

sequent amount appropriated for deposit in the

23

Trust Fund until the amount authorized to be ap-

24

propriated, as so adjusted, has been appropriated.

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1

(3) PERIOD

OF INDEXING.—The

period of in-

2

dexing adjustment under this subsection for any in-

3

crement of funding shall end on the date on which

4

funds are deposited in the Trust Fund.

5

SEC. 10. WAIVERS AND RELEASES OF CLAIMS.

6
7

(a) WAIVERS AND RELEASES.—
(1) CLAIMS

BY TRIBES AND UNITED STATES AS

8

TRUSTEE FOR TRIBES.—Subject

9

of rights and retention of claims under subsection

10

(c), as consideration for recognition of the Tribal

11

Water Right and other benefits described in the

12

Compact and this Act, the Tribes, acting on behalf

13

of the Tribes and members of the Tribes (but not

14

any member of the Tribes as an allottee), and the

15

United States, acting as trustee for the Tribes and

16

the members of the Tribes (but not any member of

17

the Tribes as an allottee), shall execute a waiver and

18

release of all claims with prejudice for water rights

19

within the State that the Tribes, or the United

20

States acting as trustee for the Tribes, asserted or

21

could have asserted in any proceeding, including a

22

State stream adjudication, on or before the enforce-

23

ability date, except to the extent that such a right

24

is recognized in the Compact and this Act.

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1

(2) CLAIMS

BY UNITED STATES AS TRUSTEE

2

FOR

3

rights and the retention of claims under subsection

4

(c), as consideration for recognition of the Tribal

5

Water Right and other benefits described in the

6

Compact and this Act, the United States, acting as

7

trustee for allottees, shall execute a waiver and re-

8

lease of all claims with prejudice for water rights

9

within the Reservation that the United States, act-

10

ing as trustee for the allottees, asserted or could

11

have asserted in any proceeding, including a State

12

stream adjudication, on or before the enforceability

13

date, except to the extent that such a right is recog-

14

nized in the Compact and this Act.

ALLOTTEES.—Subject

to the reservation of

15

(3) CLAIMS

16

STATES.—Subject

17

retention of claims under subsection (c), the Tribes,

18

acting on behalf of the Tribes and members of the

19

Tribes (but not any member of the Tribes as an al-

20

lottee), shall execute a waiver and release of all

21

claims with prejudice against the United States (in-

22

cluding any agency or employee of the United

23

States)—

24

BY

TRIBES

UNITED

to the reservation of rights and

(A) relating to—

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1

(i) water rights within the State that

2

the United States, acting as trustee for the

3

Tribes, asserted or could have asserted in

4

any proceeding, including a general stream

5

adjudication in the State, except to the ex-

6

tent that such a right is recognized as part

7

of the Tribal Water Right under this Act;

8

(ii) damage, loss, or injury to water,

9

water rights, land, or natural resources

10

due to loss of water or water rights (in-

11

cluding damages, losses, or injuries to

12

hunting, fishing, gathering, or cultural

13

rights due to loss of water or water rights,

14

claims relating to interference with, diver-

15

sion, or taking of water, or claims relating

16

to a failure to protect, acquire, replace, or

17

develop water, water rights, or water infra-

18

structure) within the State that first ac-

19

crued at any time on or before the enforce-

20

ability date;

21

(iii) a failure to establish or provide a

22

municipal, rural, or industrial water deliv-

23

ery system on the Reservation;

24

(iv) a failure to provide—

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1

(I) for operation, maintenance, or

2

deferred maintenance for the Flathead

3

Indian irrigation project or any other

4

irrigation system or irrigation project;

5

or

6

(II) a dam safety improvement to

7

a dam within the Reservation;

8

(v) the litigation of claims relating to

9

any water right of the Tribes in the State;

10

and

11

(vi) the negotiation, execution, or

12

adoption of the Compact or this Act;

13

(B) reserved under subsections (b) through

14

(d) of section 6 of the settlement agreement for

15

the case entitled ‘‘Nez Perce Tribe v. Salazar’’,

16

No. 06cv2239TFH (D.D.C. 2012);

17

(C) that first accrued at any time on or

18

before the enforceability date arising from the

19

taking or acquisition of land or resources of the

20

Tribes for the construction or operation of the

21

Flathead Indian irrigation project; and

22

(D) encompassed within the Damages Re-

23

port.

24

(4)

25

RIGHTS.—

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1

(A) IN

GENERAL.—Notwithstanding

the

2

confirmation of the water rights of the Tribes

3

described in Appendices 28 and 29 to the Com-

4

pact, as consideration for recognition of the

5

Tribal Water Right and other benefits described

6

in the Compact and this Act, the Tribes shall

7

relinquish any right, title, or claim to the water

8

rights located within the Flathead basin and de-

9

scribed in those appendices.

10

(B) REQUIREMENT.—The water rights de-

11

scribed in subparagraph (A) shall be held solely

12

by the State.

13

(b) ENFORCEABILITY DATE.—The waivers and re-

14 leases of claims under subsection (a) shall take effect on
15 the date on which the Secretary publishes in the Federal
16 Register a statement of findings that—
17

(1)(A) the Montana Water Court has approved

18

the Compact in a manner from which no further ap-

19

peal may be taken; or

20

(B) if the Montana Water Court is found to

21

lack jurisdiction, the applicable United States dis-

22

trict court has approved the Compact as a consent

23

decree from which no further appeal may be taken;

24

(2) all amounts authorized to be appropriated

25

under section 9 have been appropriated;

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1

(3) the State has appropriated and paid into an

2

interest-bearing escrow account any payments due to

3

the Tribes as of the date of enactment of this Act

4

under the Compact and this Act;

5

(4) the Tribes have ratified the Compact;

6

(5) the Secretary has fulfilled the requirements

7

of section 6; and

8

(6) the waivers and releases described in sub-

9

section (a) have been executed by the Tribes and the

10

Secretary.

11

(c) RESERVATION

OF

RIGHTS

AND

RETENTION

OF

12 CLAIMS.—Notwithstanding the waivers and releases under
13 subsection (a), the Tribes, acting on behalf of the Tribes
14 and members of the Tribes, and the United States, acting
15 as trustee for the Tribes and the allottees, shall retain—
16

(1) all claims relating to—

17

(A) the enforcement of, or claims accruing

18

after the enforceability date relating to water

19

rights recognized under—

20

(i) the Compact;

21

(ii) any final decree; or

22

(iii) this Act; and

23
24

(B) activities affecting the quality of
water, including any claims under—

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1

(i) the Comprehensive Environmental

2

Response, Compensation, and Liability Act

3

of 1980 (42 U.S.C. 9601 et seq.), includ-

4

ing damages to natural resources;

5

(ii) the Safe Drinking Water Act (42

6

U.S.C. 300f et seq.);

7

(iii) the Federal Water Pollution Con-

8

trol Act (33 U.S.C. 1251 et seq.) (com-

9

monly referred to as the ‘‘Clean Water

10

Act’’); and

11

(iv) any regulations implementing the

12

Acts described in clauses (i) through (iii);

13

(2) all rights to use and protect water rights ac-

14
15
16

quired after the date of enactment of this Act;
(3) damages, losses, or injuries to land or natural resources that are—

17

(A) not due to loss of water or water rights

18

(including hunting, fishing, gathering, or cul-

19

tural rights); and

20

(B) not encompassed within the Damages

21

Report; and

22

(4) all rights, remedies, privileges, immunities,

23

and powers not specifically waived and released pur-

24

suant to this Act or the Compact.

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1

(d) EFFECT

OF

COMPACT

AND

ACT.—Nothing in the

2 Compact or this Act—
3

(1) except as otherwise expressly provided in

4

the Compact or this Act, reduces or extends the sov-

5

ereignty (including civil and criminal jurisdiction) of

6

any government entity;

7

(2) affects the ability of the United States to

8

carry out any activity authorized by applicable law,

9

including—

10

(A) the Comprehensive Environmental Re-

11

sponse, Compensation, and Liability Act of

12

1980 (42 U.S.C. 9601 et seq.);

13
14

(B) the Safe Drinking Water Act (42
U.S.C. 300f et seq.);

15

(C) the Federal Water Pollution Control

16

Act (33 U.S.C. 1251 et seq.) (commonly re-

17

ferred to as the ‘‘Clean Water Act’’); and

18

(D) any regulations implementing the Acts

19

described in subparagraphs (A) through (C);

20

(3) affects the ability of the United States to

21

act as trustee for any other Indian tribe or allottee

22

of any other Indian tribe;

23

(4) confers jurisdiction on any State court—

24
25

(A) to interpret Federal law regarding
health, safety, or the environment;

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1

(B) to determine the duties of the United

2

States or any other party under Federal law re-

3

garding health, safety, or the environment; or

4

(C) to conduct judicial review of any Fed-

5

eral agency action;

6

(5) waives any claim of a member of the Tribes

7

in an individual capacity that does not derive from

8

a right of the Tribes;

9

(6) revives any claim waived by the Tribes in

10

the case entitled ‘‘Nez Perce Tribe v. Salazar’’, No.

11

06cv2239TFH (D.D.C. 2012); or

12

(7) revives any claim released by an allottee or

13

member of the Tribes in the settlement for the case

14

entitled ‘‘Cobell v. Salazar’’, No. 1:96CV01285–JR

15

(D.D.C. 2012).

16

(e) 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

20

during the period beginning on the date of enact-

21

ment of this Act and ending on the date on which

22

the amounts made available to carry out this Act are

23

transferred to the Secretary.

24
25

(2) EFFECT

OF SUBSECTION.—Nothing

in this

subsection revives any claim or tolls any period of

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41
1

limitation or time-based equitable defense that ex-

2

pired before the date of enactment of this Act.

3

(f) EXPIRATION.—

4

(1) IN

5

case in which—

GENERAL.—This

Act shall expire in any

6

(A) the amounts authorized to be appro-

7

priated by this Act have not been made avail-

8

able to the Secretary by not later than—

9

(i) January 21, 2031; or

10

(ii) such alternative later date as is

11

agreed to by the Tribes and the Secretary;

12

or

13

(B) the Secretary fails to publish a state-

14

ment of findings under subsection (b) by not

15

later than—

16

(i) January 21, 2032; or

17

(ii) such alternative later date as is

18

agreed to by the Tribes and the Secretary,

19

after providing reasonable notice to the

20

State.

21
22

(2) CONSEQUENCES.—If this Act expires under
paragraph (1)—

23
24

(A) the waivers and releases under subsection (a) shall—

25

(i) expire; and

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1

(ii) have no further force or effect;

2

(B) the authorization, ratification, con-

3

firmation, and execution of the Compact under

4

section 4 shall no longer be effective;

5

(C) any action carried out by the Sec-

6

retary, and any contract or agreement entered

7

into, pursuant to this Act shall be void;

8

(D) any unexpended Federal funds appro-

9

priated or made available to carry out the ac-

10

tivities authorized by this Act, together with

11

any interest earned on those funds, and any

12

water rights or contracts to use water and title

13

to other property acquired or constructed with

14

Federal funds appropriated or made available

15

to carry out the activities authorized by this Act

16

shall be returned to the Federal Government,

17

unless otherwise agreed to by the Tribes and

18

the United States and approved by Congress;

19

and

20

(E) except for Federal funds used to ac-

21

quire or construct property that is returned to

22

the Federal Government under subparagraph

23

(D), the United States shall be entitled to offset

24

any Federal funds made available to carry out

25

this Act that were expended or withdrawn, or

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1

any funds made available to carry out this Act

2

from other Federal authorized sources, together

3

with any interest accrued on those funds,

4

against any claims against the United States—

5

(i) relating to—

6

(I) water rights in the State as-

7

serted by—

8

(aa) the Tribes; or

9

(bb) any user of the Tribal

10

Water Right; or

11

(II) any other matter encom-

12

passed in the Damages Report; or

13

(ii) in any future settlement of water

14
15
16

rights of the Tribes or an allottee.
SEC. 11. SATISFACTION OF CLAIMS.

(a) TRIBAL CLAIMS.—The benefits realized by the

17 Tribes under this Act shall be in complete replacement of,
18 complete substitution for, and full satisfaction of all claims
19 of the Tribes against the United States waived and re20 leased pursuant to section 10.
21

(b) ALLOTTEE CLAIMS.—The benefits realized by the

22 allottees under this Act shall be in complete replacement
23 of, complete substitution for, and full satisfaction of—
24
25

(1) all claims waived and released pursuant to
section 10(a)(2); and

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1

(2) any claims of an allottee against the United

2

States similar in nature to a claim described in sec-

3

tion 10(a)(2) that the allottee asserted or could have

4

asserted.

5
6

SEC. 12. MISCELLANEOUS PROVISIONS.

(a) AMENDMENTS.—

7

(1) ACT

OF APRIL 23, 1904.—Section

9 of the

8

Act of April 23, 1904 (33 Stat. 304, chapter 1495;

9

35 Stat. 450, chapter 216), is amended by striking

10

the seventh undesignated paragraph.

11

(2) ACT

OF MAY 25, 1948.—Section

2 of the Act

12

of May 25, 1948 (62 Stat. 269, chapter 340), is

13

amended—

14

(A) in subsection (h), by striking para-

15

graph (6) and inserting the following:

16

‘‘(6) To enhance fisheries habitat or to improve

17

water conservation management of the project.’’;

18

and

19
20
21

(B) by adding at the end the following:
‘‘(k) MISSION VALLEY DIVISION.—
‘‘(1) IN

GENERAL.—The

Secretary of the Inte-

22

rior (referred to in this section as the ‘Secretary’),

23

or the Confederated Salish and Kootenai Tribes of

24

the Flathead Reservation of Montana acting on be-

25

half of the Secretary, as the entity with the legal au-

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1

thority and responsibility to operate the Mission Val-

2

ley division of the project (referred to in this sub-

3

section as the ‘project operator’), may allocate reve-

4

nues derived from the Mission Valley division in ac-

5

cordance with paragraph (2) for the purposes de-

6

scribed in subsection (h)(6).

7

‘‘(2) ALLOCATION.—

8

‘‘(A) IN

GENERAL.—Subject

to subpara-

9

graphs (B) and (C), the revenues described in

10

paragraph (1) shall be allocated by providing—

11

‘‘(i) $100,000 to the Tribes; and

12

‘‘(ii) $100,000 to the project operator.

13

‘‘(B) NEGOTIATION.—Effective beginning

14

on October 1 of the tenth calendar year begin-

15

ning after the date of enactment of the Mon-

16

tana Water Rights Protection Act, the Confed-

17

erated Salish and Kootenai Tribes of the Flat-

18

head Reservation of Montana, the State of

19

Montana, and the Secretary may negotiate for

20

an appropriate allocation that differs from the

21

allocation described in subparagraph (A).

22

‘‘(C) CARRYOVER.—If the project operator

23

does not use the full allocation of the project

24

operator under this paragraph for a fiscal year,

25

an amount equal to the difference between the

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1

full allocation and the amount used by the

2

project operator shall be set aside and accumu-

3

lated for expenditure during subsequent fiscal

4

years for the purposes described in subsection

5

(h)(6).’’.

6

(3) INDIAN

SELF-DETERMINATION AND EDU-

7

CATION ASSISTANCE ACT.—Section

8

Indian Self-Determination and Education Assistance

9

Act (25 U.S.C. 5363(b)(4)) is amended—

10
11

(A) in subparagraph (A), by adding ‘‘and’’
at the end;

12
13

403(b)(4) of the

(B) in subparagraph (B), by striking
‘‘and’’ at the end; and

14

(C) by striking subparagraph (C).

15

(b) LIENS.—Any lien established by the Act of April

16 23, 1904 (33 Stat. 302, chapter 1495; 35 Stat. 449, chap17 ter 216), is extinguished and released.
18

(c) WAIVER

OF

SOVEREIGN IMMUNITY.—Except as

19 provided in subsections (a) through (c) of section 208 of
20 the Department of Justice Appropriation Act, 1953 (43
21 U.S.C. 666), nothing in this Act waives the sovereign im22 munity of the United States.
23

(d) OTHER TRIBES NOT ADVERSELY AFFECTED.—

24 Nothing in this Act quantifies or diminishes any land or

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1 water right, or any claim or entitlement to land or water,
2 of any Indian tribe other than the Tribes.
3

(e) LIMITATION ON CLAIMS FOR REIMBURSEMENT.—

4 With respect to Indian land located within the Reserva5 tion—
6

(1) the United States shall not submit any

7

claim for reimbursement of the cost to the United

8

States of carrying out this Act or the Compact; and

9

(2) no assessment shall be made regarding that

10

cost.

11

(f) LIMITATION ON LIABILITY OF UNITED STATES.—

12

(1) IN

13

obligation—

GENERAL.—The

United States has no

14

(A) to monitor, administer, or account for,

15

in any manner, any funds provided to the

16

Tribes by the State; or

17

(B) to review or approve any expenditure

18

of the funds described in subparagraph (A).

19

(2) INDEMNITY.—The Tribes shall indemnify

20

the United States, and hold the United States harm-

21

less, with respect to all claims (including claims for

22

takings or breach of trust) arising from the receipt

23

or expenditure of amounts to carry out this Act.

24

(g) ANTIDEFICIENCY.—The United States shall not

25 be liable for any failure to carry out any obligation or ac-

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48
1 tivity authorized by this Act (including any obligation or
2 activity under the Compact) if—
3
4

(1) adequate appropriations are not provided
expressly by Congress to carry out this Act; or

5

(2) insufficient funds are available to carry out

6

this Act in the Reclamation Water Settlements Fund

7

established by section 10501(a) of the Omnibus

8

Public Land Management Act of 2009 (43 U.S.C.

9

407(a)).

10

(h) FEDERAL ADVISORY COMMITTEE ACT.—The

11 Federal Advisory Committee Act (5 U.S.C. App.) shall not
12 apply to any activity or function carried out by the Sec13 retary under this Act.
14
15

(i) EXCHANGES OF LAND.—
(1) STATE

16

TRUST LAND.—

(A) IN

GENERAL.—The

Secretary shall

17

offer to negotiate with the State for the purpose

18

of exchanging public land within the State for

19

State trust land located within the Reservation

20

with a total value substantially equal to the

21

value of the surface estate of the approximately

22

36,808 acres of State trust land obtained by

23

the State pursuant to—

24

(i) the Act of February 22, 1889

25

(commonly known as the ‘‘Montana Ena-

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1

bling Act’’) (25 Stat. 676, chapter 180),

2

and the Act of April 23, 1904 (33 Stat.

3

302, chapter 1495; 35 Stat. 449, chapter

4

216); or

5

(ii) the Act of February 25, 1920 (41

6

Stat. 452).

7

(B) PROCEDURES.—An exchange described

8

in subparagraph (A) shall be conducted in ac-

9

cordance with section 206 of the Federal Land

10

Policy and Management Act of 1976 (43 U.S.C.

11

1716).

12

(C) VALUATION.—In determining the fair

13

market value of land for purposes of subpara-

14

graph (A), the parties to the exchange shall

15

give due consideration to the value of any im-

16

provements on the land.

17

(D) FINANCIAL

IMPACT.—The

Secretary

18

shall ensure that land exchanged pursuant to

19

this paragraph is selected in a manner that

20

minimizes the financial impact on local govern-

21

ments, if any.

22

(E) ASSISTANCE.—The Secretary shall

23

provide such financial or other assistance to the

24

State and the Tribes as may be necessary to

25

obtain the appraisals, and to satisfy administra-

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1

tive requirements, necessary to accomplish the

2

exchanges under subparagraph (A).

3
4

(F) TITLE.—On approving an exchange
under this paragraph, the Secretary shall—

5

(i) receive title in and to the State

6

trust land involved in the exchange, on be-

7

half of the United States; and

8

(ii) transfer title in and to the public

9

land disposed of in the exchanges with the

10

State by such means of conveyance as the

11

Secretary considers to be appropriate.

12

(G) TRUST.—Title to the State trust land

13

acquired pursuant to an exchange under this

14

paragraph shall be—

15

(i) vested in the United States in

16

trust for the sole use and benefit of the

17

Tribes; and

18

(ii) recognized as part of the Reserva-

19
20

tion.
(2) REQUIREMENTS.—

21

(A) IN

GENERAL.—In

carrying out para-

22

graph (1), the Secretary shall, during the 5-

23

year period beginning on the date of enactment

24

of this Act, give priority to an exchange of pub-

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1

lic land within the State for State trust land

2

owned by the State.

3

(B) TOTAL

VALUE.—The

total value of the

4

land exchanged and acquired for the Tribes

5

pursuant to this subsection shall not exceed the

6

value of the surface estate of the 36,808 acres

7

described in paragraph (1)(A).

8

(C) PRIVATE

9

(i) IN

EXCHANGES.—

GENERAL.—Subject

to subpara-

10

graph (B), if, for any reason, after the ex-

11

piration of the period described in subpara-

12

graph (A), the exchanges under paragraph

13

(1) have not provided to the Tribes a total

14

of 36,808 acres of surface land within the

15

boundaries of the Reservation, the Sec-

16

retary shall, at the request of, and in co-

17

operation with, the Tribes, develop and im-

18

plement a program to provide to the Tribes

19

additional land within the Reservation

20

through land exchanges with private land-

21

owners.

22

(ii) REQUIREMENT.—In carrying out

23

this subparagraph, the Secretary may ex-

24

change public land within the State for pri-

25

vate land of substantially equal value with-

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1

in the boundaries of the Reservation, in ac-

2

cordance with section 206 of the Federal

3

Land Policy and Management Act of 1976

4

(43 U.S.C. 1716).

5

(D) VALUATION.—In determining the fair

6

market value of land under subparagraph (C),

7

the parties to an exchange made pursuant to

8

that subparagraph shall give due consideration

9

to the value of improvements on the land.

10

(E) TITLE.—If the Secretary obtains pri-

11

vate land pursuant to subparagraph (C), the

12

Secretary shall transfer title to the land to the

13

Tribes.

14

(F) TRUST.—Title to any private or public

15

land transferred to the Tribes pursuant to this

16

paragraph shall—

17

(i) be vested in the United States in

18

trust for the sole use and benefit of the

19

Tribes; and

20

(ii) be recognized as part of the Res-

21

ervation, if the land is located within the

22

boundaries of the Reservation.

23

(G)

TRIBAL

ASSISTANCE.—The

Tribes

24

shall assist in obtaining prospective willing par-

25

ties to exchange private land within the Res-

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1

ervation for public land within the State under

2

this paragraph.

3

(j) REVIEW

OF

DECISIONS.—A court of competent

4 jurisdiction shall review the decisions of the Flathead Res5 ervation Water Management Board and the Montana De6 partment of Fish, Wildlife, and Parks in accordance
7 with—
8

(1) the Compact;

9

(2) the Law of Administration; and

10
11

(3) this Act.
(k) PAYMENTS TO CERTAIN COUNTIES.—

12

(1) PAYMENTS.—

13

(A) BY

SECRETARY.—Subject

to para-

14

graph (2), to reduce the financial impact on the

15

counties in which the land restored by section

16

13 is located, the Secretary shall make pay-

17

ments to Lake County and Sanders County in

18

the State, out of amounts in the fund estab-

19

lished under section 401(a) of the Act of June

20

15, 1935 (16 U.S.C. 715s(a)).

21

(B) BY

TRIBES.—To

ensure that culverts,

22

bridges, and roads that intersect with, or are

23

otherwise located within, the supply and dis-

24

tribution network of the Flathead Indian irriga-

25

tion project comply with Federal environmental

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1

requirements, to ensure public safety, and to

2

enhance Tribal fisheries on the Reservation, the

3

Tribes shall allocate from the Trust Fund

4

amounts withdrawn for the purposes described

5

in section 8(g)(14), under an agreement ap-

6

proved by the Secretary—

7

(i) $5,000,000 to Lake County in the

8

State; and

9

(ii) $5,000,000 to Sanders County in

10
11

the State.
(2) AMOUNT

OF PAYMENTS.—The

amount of

12

the payments under paragraph (1)(A) shall be equal

13

to the amount each county would have received if

14

this section had not been enacted.

15

(3) TREATMENT

OF LAND FOR PURPOSES OF

16

CALCULATING PAYMENTS.—For

17

of calculating payments to Lake County and Sand-

18

ers County under this subsection and section 401 of

19

the Act of June 15, 1935 (16 U.S.C. 715s), the land

20

restored by section 13 shall be treated as a fee area

21

(as defined in section 401(g) of the Act of June 15,

22

1935 (16 U.S.C. 715s(g)).

23
24
25

the limited purposes

SEC. 13. NATIONAL BISON RANGE RESTORATION.

(a) FINDINGS; PURPOSES.—
(1) FINDINGS.—Congress finds that—

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1

(A) the Reservation was set aside for the

2

Tribes in 1855 under the treaty between the

3

United States and the Tribes concluded at Hell

4

Gate on July 16, 1855 (12 Stat. 975);

5

(B) the National Bison Range was estab-

6

lished as a conservation measure in 1908, a

7

time when the bison were at grave risk of ex-

8

tinction;

9

(C) the National Bison Range is located in

10

the middle of the Reservation on land that was

11

acquired by the United States in what was later

12

held, in the civil action entitled ‘‘Confederated

13

Salish and Kootenai Tribes of the Flathead In-

14

dian Reservation, Montana v. United States,’’

15

(437 F.2d 458 (Ct.Cl. 1971)), to be a taking

16

under the Fifth Amendment to the Constitution

17

of the United States;

18

(D) the Tribes never consented to the re-

19

moval of the land described in subparagraph

20

(C) from Tribal ownership;

21

(E) since time immemorial until the estab-

22

lishment of the National Bison Range, the

23

Tribes had used the land described in subpara-

24

graph (C) for—

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1

(i) hunting, fishing, and gathering;

2

and

3

(ii) cultural and many other purposes;

4

(F)(i) in the 1870s, when slaughter re-

5

sulted in the risk of bison extinction, a Pend

6

d’Oreille man named Little Falcon Robe re-

7

ceived approval from leaders of the Tribes to

8

bring orphaned bison calves across the Conti-

9

nental Divide to the Reservation for purposes of

10

starting a herd for subsistence and conservation

11

purposes;

12

(ii) starting with just a few bison calves,

13

the animals grew into a large herd under the

14

stewardship of members of the Tribes, who

15

later included Michel Pablo and Charles Allard;

16

and

17

(iii) the Reservation was the home of that

18

free-ranging herd of bison for decades before

19

the establishment of the National Bison Range;

20

(G) when the Reservation was opened for

21

homesteading, a free-ranging bison herd was no

22

longer feasible, resulting in Michel Pablo selling

23

the herd to off-Reservation interests;

24

(H) many of the bison, or their descend-

25

ants, from the Tribal member-managed herd

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1

were repurchased and brought back to the Res-

2

ervation to form the original herd for the Na-

3

tional Bison Range;

4

(I) the bison herd at the National Bison

5

Range descends largely from a herd started and

6

managed as described in subparagraph (F);

7

(J) the Tribes—

8

(i) have played a substantive role as

9

conservation leaders, often in partnership

10

with the National Bison Range;

11

(ii) have demonstrated a long-term

12

commitment to responsible management of

13

the land and resources surrounding the

14

National Bison Range; and

15

(iii) desire to carry out the purposes

16

for which the National Bison Range was

17

established;

18

(K) the Tribes have extensive experience in

19

wildlife and natural resources management, in-

20

cluding—

21

(i) the establishment and management

22

of the 91,000-acre Mission Mountains

23

Tribal Wilderness, the first tribally des-

24

ignated wilderness area in the United

25

States;

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1

(ii) special management districts for

2

large animals, such as the Little Money

3

Bighorn Sheep Management Area and the

4

Ferry Basin Elk Management Area; and

5

(iii) the restoration and management

6

of bighorn sheep populations, peregrine fal-

7

cons, and trumpeter swans on the Reserva-

8

tion;

9

(L) the Tribes have an extensive history of

10

successful partnerships with Federal agencies

11

with respect to issues such as—

12

(i) threatened and endangered species

13

management;

14

(ii) migratory waterfowl management;

15

and

16

(iii) wetland habitat management;

17

(M)(i) the Tribes have entered into prior

18

management-related agreements relating to the

19

National Bison Range under title IV of the In-

20

dian Self-Determination and Education Assist-

21

ance Act (25 U.S.C. 5361 et seq.); and

22

(ii) the Tribes and the United States de-

23

sire to build on past and current partnerships,

24

as well as honor and advance the Federal and

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1

Tribal objectives of increasing Tribal autonomy

2

and Tribal governmental capacity;

3

(N) since the establishment of the National

4

Bison Range, additional herds of bison have

5

been established on other national wildlife ref-

6

uges and national parks;

7

(O) the facts and history regarding the

8

Federal Government, the Tribes, the bison, and

9

land on the Reservation acquired for the Na-

10

tional

11

cumstances that warrant action by Congress;

12

and

Bison

Range

are

exceptional

cir-

13

(P) the United States should hold title in

14

and to the land comprising the National Bison

15

Range, with beneficial title of the land being re-

16

stored to the Tribes for—

17

(i) continued bison conservation;

18

(ii) other wildlife and natural resource

19

management purposes; and

20

(iii) other nonconflicting purposes of

21
22
23

the Tribes.
(2) PURPOSES.—The purposes of this section
are—

24

(A) to acknowledge the history, culture,

25

and ecological stewardship of the Tribes with

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1

respect to the land on the Reservation acquired

2

for the National Bison Range, bison, and other

3

natural resources;

4

(B) to ensure that the land, bison, and

5

other resources referred to in subparagraph (A)

6

continue to be protected and enhanced;

7

(C) to continue public access and edu-

8

cational opportunities; and

9

(D) to ensure a smooth transition for land,

10

bison, and other natural resources as the land

11

is restored to Federal trust ownership for the

12

benefit of the Tribes.

13

(b) DEFINITION

OF

NATIONAL BISON RANGE.—In

14 this section, the term ‘‘National Bison Range’’ means all
15 land within the Reservation that was reserved for the na16 tional bison range under the matter under the heading
17 ‘‘NATIONAL

BISON RANGE’’

18

CELLANEOUS’’

19

RICULTURE’’

under the heading ‘‘MIS-

under the heading ‘‘DEPARTMENT

OF

AG -

in the Act of May 23, 1908 (16 U.S.C. 671)

20 (as in effect on the day before the date of enactment of
21 this Act).
22
23

(c) RESTORATION OF LAND.—
(1) IN

GENERAL.—Notwithstanding

any other

24

provision of law, for the purposes of conserving

25

bison, wildlife, and natural resources, and of safe-

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1

guarding the interests of the Tribes in those re-

2

sources and the traditional, cultural, and other inter-

3

ests of the Tribes, all land comprising the National

4

Bison Range (including all natural resources, inter-

5

ests, and appurtenances of that land) shall be held

6

in trust by the United States for the benefit of the

7

Tribes.

8
9

(2) ADMINISTRATION.—The land restored by
paragraph (1) shall be—

10

(A) a part of the Reservation;

11

(B) administered under the laws (including

12

regulations) applicable to Indian trust land; and

13

(C) managed by the Tribes, in accordance

14

with paragraph (3), solely for the care and

15

maintenance of bison, wildlife, and other nat-

16

ural resources, including designation or naming

17

of the restored land.

18

(3) TRIBAL

MANAGEMENT.—In

managing the

19

land restored by paragraph (1), the Tribes shall—

20

(A) provide public access and educational

21

opportunities; and

22

(B) at all times, have a publicly available

23

management plan for the land, bison, and nat-

24

ural resources, which shall include actions to

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1

address management and control of invasive

2

weeds.

3
4
5

(d) CONVEYANCE OF BUILDINGS AND OTHER STRUCTURES.—

(1) IN

GENERAL.—The

United States shall con-

6

vey to the Tribes, to own in fee, all ownership inter-

7

ests of the United States in all buildings, structures,

8

improvements, and appurtenances located on the

9

land restored by subsection (c)(1).

10

(2) PERSONAL

PROPERTY.—The

United States

11

may convey to the Tribes any personal property

12

owned by the United States and found on, or other-

13

wise associated with, the land restored by subsection

14

(c)(1).

15

(e) RELINQUISHMENT

OF

RIGHTS

TO

BISON.—The

16 United States relinquishes to the Tribes all interests of
17 United States in the bison on the land restored by sub18 section (c)(1).
19
20

(f) TRANSITION.—
(1) IN

GENERAL.—Notwithstanding

any other

21

provision of law, during the 2-year period beginning

22

on the date of enactment of this Act, the Secretary

23

shall cooperate with the Tribes in transition activi-

24

ties regarding the management of land, bison, and

25

other resources conveyed by this Act, including by

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1

providing to the Tribes funds, personal property,

2

equipment, or other resources determined to be ap-

3

propriate by the Secretary for the performance of, or

4

assistance with, the types of activities carried out by

5

the Secretary at the National Bison Range as of the

6

date of enactment of this Act.

7

(2) EFFECT.—Consistent with subsections (c),

8

(d), and (e), nothing in this section authorizes the

9

Director of the United States Fish and Wildlife

10

Service to retain ownership or control of any real or

11

personal property conveyed by this section, except as

12

the Tribes may agree to in writing.

13

(g) REPEAL.—The matter under the heading ‘‘NA-

14

TIONAL BISON RANGE’’

15

NEOUS’’

16

CULTURE’’

under the heading ‘‘MISCELLA-

under the heading ‘‘DEPARTMENT

OF

AGRI-

in the Act of May 23, 1908 (16 U.S.C. 671),

17 is repealed.
18
19

(h) LIABILITY.—
(1) FUNDING

FOR LIABILITY INSURANCE.—For

20

the continued protection of the public, and as long

21

as public visitation is required by Federal law for

22

the land restored by this section, the Secretary shall

23

provide to the Tribes funding sufficient to procure li-

24

ability insurance covering tort actions filed by mem-

25

bers of the public.

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(2) LIABILITY

OF TRIBES.—The

Tribes shall

2

not be liable for any land, soil, surface water,

3

groundwater, or other contamination, injury, or

4

damage resulting from the storage, disposal, release,

5

or presence of any hazardous substance (as defined

6

in section 101 of the Comprehensive Environmental

7

Response, Compensation, and Liability Act of 1980

8

(42 U.S.C. 9601)) on any portion of the land re-

9

stored by this section on or before the date of the

10

conveyance, unless the Tribes would otherwise have

11

been responsible for the storage, disposal, release, or

12

presence.

13

(i) CLAIMS AGAINST UNITED STATES.—No claim

14 may be brought pursuant to chapter 7 of title 5, United
15 States Code, or section 1491 or 1505 of title 28, United
16 States Code, against the United States, or any agency,
17 officer, or employee of the United States, concerning the
18 preconveyance or postconveyance management of the land
19 and other property conveyed by this section.
20

(j) EFFECT.—Nothing in this section relieves the

21 United States of any obligation under section 120(h)(3)
22 of the Comprehensive Environmental Response, Com23 pensation, and Liability Act of 1980 (42 U.S.C.
24 9620(h)(3)).

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(k) NO PRECEDENT.—The provisions of this sec-

2 tion—
3

(1) are uniquely suited to address the distinct

4

circumstances, facts, history, and relationships in-

5

volved with the bison, land, and Tribes; and

6

(2) are not intended, and shall not be inter-

7

preted, to establish a precedent for any other situa-

8

tion regarding Federal land, property, or facilities.

9

(l) INDIAN GAMING REGULATORY ACT.—The land

10 restored by this section shall not be eligible or used for
11 any gaming activity carried out under the Indian Gaming
12 Regulatory Act (25 U.S.C. 2701 et seq.).
13
14

SEC. 14. EFFECT.

Nothing in this Act affects any provision of law (in-

15 cluding regulations) in effect on the day before the date
16 of enactment of this Act with respect to preenforcement
17 review of any Federal environmental enforcement action.

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