Text: S.1607 — 102nd Congress (1991-1992)All Information (Except Text)

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--S.1607--
S.1607
One Hundred Second Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Friday, the third day of January,
one thousand nine hundred and ninety-two
An Act
To provide for the settlement of the water rights claims of the Northern
Cheyenne
Tribe, and for other purposes.
  Be it enacted by the Senate and House of Representatives of the United
  States of America in Congress assembled,
SECTION 1.  SHORT TITLE.
  This Act may be cited as the `Northern Cheyenne Indian Reserved Water
  Rights Settlement Act of 1992'.
SEC. 2. PURPOSES OF ACT.
  (a) PURPOSES- The purposes of this Act are:
  (1) to achieve a fair, equitable, and final settlement of all claims to
  Federal reserved water rights in the State of Montana of--
  (A) the Northern Cheyenne Tribe and its members and allottees; and
  (B) the United States on behalf of the Northern Cheyenne Tribe and its
  members and allottees;
  (2) to approve, ratify and confirm the Water Rights Compact entered into
  by the Northern Cheyenne Tribe and the State of Montana on June 11, 1991;
  (3) to direct the Secretary of the Interior to enter into a cooperative
  agreement with the State of Montana for the planning, environmental
  compliance, design, and construction of the Tongue River Dam Project in
  order to--
  (A) implement the Compact's settlement of the Tribe's reserved water rights
  claims in the Tongue River Basin;
  (B) protect existing tribal contract water rights in the Tongue River Basin;
  (C) provide 20,000 acre-feet per year of additional storage water
  for allocation to the Tribe and to allow the State to implement its
  responsibilities to correct identified Tongue River Dam safety inadequacies;
  and
  (D) provide for the conservation and development of fish and wildlife
  resources in the Tongue River Basin;
  (4) to provide for the enhancement of fish and wildlife habitat in the
  Tongue River Basin;
  (5) to authorize certain modifications to the purposes and operation of
  the Big Horn Reservoir in order to implement the Compact's settlement of
  the Tribe's reserved water rights claims; and
  (6) to authorize the Secretary of the Interior to take such other actions
  as are necessary to implement the Compact.
SEC. 3. DEFINITIONS.
  As used in this Act:
  (1) ALLOTTEE- The term `allottee' means any person who owns land in trust
  on the Northern Cheyenne Reservation.
  (2) COMPACT- The term `Compact' means the Water Rights Compact entered into
  on June 11, 1991, by the Northern Cheyenne Tribe and the State of Montana.
  (3) NORTHERN CHEYENNE FUND- The term `Northern Cheyenne Fund' means the
  Northern Cheyenne Indian Reserved Water Rights Settlement Trust Fund
  established by section 6.
  (4) RESERVATION- The term `Reservation' means the Northern Cheyenne
  Reservation as established by Executive orders of November 26, 1884 and
  March 19, 1900.
  (5) SECRETARY- The term `Secretary' means the Secretary of the Interior.
  (6) STATE- The term `State' means the State of Montana.
  (7) STATE WATER CONTRACTS- The term `State water contracts' means contracts
  with the Montana Department of Natural Resources and Conservation (DNRC),
  or its successor State agency, to receive stored water from the National
  Resources and Conservation's storage rights in the Tongue River Reservoir.
  (8) TONGUE RIVER DAM PROJECT- The term `Tongue River Dam Project' means
  the project, conducted pursuant to the cooperative agreements between
  the Bureau of Reclamation and the State of Montana authorized by this Act
  and subject to conditions contained in the Compact and in the record of
  decision after completion of environmental review, to repair and enlarge
  the Tongue River Dam.
  (9) TRIBAL WATER RIGHT- The term `tribal water right' means the tribal
  water right as defined in the Compact.
  (10) TRIBE- The term `Tribe' means the Northern Cheyenne Tribe.
SEC. 4. RATIFICATION OF COMPACT.
  (a) IN GENERAL- Except as modified by this Act, the Water Rights Compact
  entered into by the Northern Cheyenne Tribe and the State of Montana is
  hereby approved, ratified, and confirmed.
  (b) IMPLEMENTATION- The Secretary shall implement the Compact as provided
  in this Act.
  (c) ENTRY OF DECREE- Except for the authorizations contained in subsections
  7(b)(1) and 7(b)(2), the authorization of appropriations contained in
  this Act shall not be effective until such time as the Montana water
  court enters and approves a decree as provided in subsection (d) of this
  section. Notwithstanding the provisions of Article V. 2. of the Compact,
  for the purposes of the proceeding involving such a decree, the effective
  date of the Compact shall be the date of the enactment of this Act.
  (d) FORM OF DECREE- No later than 180 days after the date of the enactment
  of this Act, the United States, the Tribe, and the State of Montana shall
  jointly petition the Montana water court to enter and approve the `Proposed
  Decree' agreed to by the United States, the Tribe, and the State of Montana
  on May 5, 1992, or any amended version thereof.
SEC. 5. USE AND TRANSFER OF THE TRIBAL WATER RIGHT.
  (a) ADMINISTRATION AND ENFORCEMENT- As provided in the Compact, until
  the adoption and approval of a tribal water code, the Secretary shall
  administer and enforce the tribal water right.
  (b) MEMBERS AND ALLOTTEES- Any entitlement to reserved water of any tribal
  member or allottee shall be satisfied solely from the water secured to
  the Tribe by the Compact and shall be governed by the terms and conditions
  thereof. Such entitlement shall be administered by the Tribe pursuant to
  a tribal water code developed and adopted pursuant to Article III.A. of
  the Compact, or by the Secretary pending the adoption and approval of the
  tribal water code.
  (c) TRANSFER OF THE TRIBAL WATER RIGHT-
  (1) IN GENERAL- Subject to paragraph (2), the Northern Cheyenne Tribe,
  or persons or entities authorized by the Tribe, may enter into a service
  contract, lease, exchange, or other agreement providing for the delivery,
  use, or transfer of the tribal water right confirmed to the Tribe in
  the Compact.
  (2) LIMITATIONS- Any service contract, lease, exchange, or other agreement
  entered into under subsection (c)(1) shall be subject to approval by the
  Secretary, and the limitations and conditions set forth in the Compact,
  and may not permanently alienate any portion of the tribal water right.
SEC. 6. NORTHERN CHEYENNE INDIAN RESERVED WATER RIGHTS SETTLEMENT TRUST FUND.
  (a) ESTABLISHMENT OF FUND- There is established in the Treasury of the
  United States a trust fund to be known as the `Northern Cheyenne Indian
  Reserved Water Rights Settlement Trust Fund'.
  (b) EXPENDITURES FROM NORTHERN CHEYENNE FUND- Amounts in the Northern
  Cheyenne Fund shall be available, without fiscal year limitations, to the
  Secretary for expenditure by the Secretary or by the Tribe in accordance
  with the provisions of this Act.
  (c) CONTENTS OF NORTHERN CHEYENNE FUND- The Northern Cheyenne Fund shall
  consist of such amounts as are appropriated to it in accordance with the
  authorization provided by this Act, together with such amounts credited
  to it in accordance with section 7(e).
  (d) USE OF NORTHERN CHEYENNE FUND- The Tribe shall make $11,500,000 available
  from the Northern Cheyenne Fund to the State of Montana as a loan to assist
  financing Tongue River Dam Project costs, and such loan shall be repaid
  by the State to the Tribe. All other moneys appropriated to the Northern
  Cheyenne Fund pursuant to section 7(a), together with interest credited
  thereto, may be used by the Tribe for--
  (1) land and natural resources administration, planning, and development
  within the Reservation;
  (2) land acquisition by the Tribe within the Reservation; or
  (3) any other purpose determined by the Tribe.
  (e) PER CAPITA PAYMENTS- Funds within the Northern Cheyenne Fund shall
  not be distributed on a per capita basis to members of the Tribe.
  (f) CONGRESSIONAL INTENT- Nothing in this Act is intended--
  (1) to alter the trust responsibility of the United States to the Tribe; or
  (2) to prohibit the Tribe from seeking additional authorization or
  appropriation of funds for tribal programs or purposes.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
  (a) TRIBAL FUNDS- There are authorized to be appropriated to the Northern
  Cheyenne Fund for use by the Tribe $7,400,000 in fiscal year 1995,
  $9,000,000 in fiscal year 1996, and $5,100,000 in fiscal year 1997.
  (b) TONGUE RIVER DAM PROJECT- (1) There are authorized to be appropriated
  to the Northern Cheyenne Fund for use, in accordance with paragraph (2),
  for the Tongue River Dam Project:
  (A) $700,000 in fiscal year 1993;
  (B) $700,000 in fiscal year 1994;
  (C) $15,300,000 in fiscal year 1995;
  (D) $11,400,000 in fiscal year 1996; and
  (E) $3,400,000 in fiscal year 1997.
  (2) Moneys appropriated pursuant to paragraph (1) shall be available for
  use by the State of Montana and the Secretary for the planning, design, and
  construction of the Tongue River Dam Project in accordance with provisions
  of April 17, 1991, letter of agreement signed by the Northern Cheyenne
  Tribal Federal Negotiation Team and Montana Department of Natural Resources
  and Conservation. The Federal contribution is provided for development of
  additional capacity in the Tongue River Dam for storage of water secured to
  the Tribe in satisfaction of the Tribe's claims to water under the Compact.
  (c) INDEXING OF AUTHORIZATION FOR CONSTRUCTION COSTS- For the purposes
  of this section, the total estimated costs of construction of the Tongue
  River Dam Project, inclusive of noncontract costs, shall be $52,200,000 at
  the January 1991 price level. The project's annual authorization provided
  in subsection (b) and the Federal and State shares shall be adjusted up or
  down as may be required by reason of ordinary fluctuations in construction
  costs, as indicated by engineering cost indices applicable to the type of
  construction involved in the Tongue River Dam Project.
  (d) FISH AND WILDLIFE ENHANCEMENT-
  (1) IN GENERAL- The Secretary shall identify and develop features of the
  Tongue River Dam Project that provide for the enhancement of fish and
  wildlife habitats, in accordance with the Federal Water Project Recreation
  Act (16 U.S.C. 4601-12 et seq.).
  (2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated
  to the Northern Cheyenne Fund, for expenditure by the Secretary, $1,800,000
  in fiscal year 1996, and $1,700,000 in fiscal year 1997 for Fish and
  Wildlife Enhancement, plus such sums as are necessary to defray increases
  in development costs reflected in appropriate engineering costs indices
  after January 1991. The Tribe shall not be required to reimburse amounts
  expended pursuant to this section.
  (e) ENVIRONMENTAL COMPLIANCE- There are authorized to be appropriated
  to the Northern Cheyenne Fund for fiscal year 1993, and each fiscal
  year thereafter, such sums as are necessary to carry out all necessary
  environmental compliance associated with the Compact, including mitigation
  measures adopted by the Secretary.
  (f) OPERATION, MAINTENANCE, AND REPLACEMENT COSTS- There are authorized
  to be appropriated to the Northern Cheyenne Fund, for fiscal year 1993,
  and each fiscal year thereafter, on a nonreimbursable basis, such sums as
  are necessary to pay the annual operation, maintenance, and replacement
  costs provided for in section 10(f).
  (g) WITHOUT FISCAL YEAR DEFINITIONS- All moneys appropriated pursuant
  to authorizations under this Act shall be available without fiscal year
  limitation.
SEC. 8. STATE CONTRIBUTIONS TO SETTLEMENT.
  The provisions of section 6(d) shall be subject to the State of Montana
  contributing the following amounts to the settlement:
  (1) $5,000,000 for contract costs associated with repair of the Tongue
  River Dam Project;
  (2) $11,500,000 to be contributed to the Northern Cheyenne Fund as repayment
  of the loan provided for in section 6(d);
  (3) $4,200,000 of noncontract costs assumed by the State of Montana according
  to the terms of the letter of agreement on cost-sharing between the State
  of Montana and the United States dated April 17, 1991; and
  (4) $1,100,000 for the Fish and Wildlife enhancement measures identified
  in section 7(d).
SEC. 9. BIG HORN RESERVOIR STORAGE.
  (a) ALLOCATION FOR TRIBE-
  (1) IN GENERAL- As provided in the Compact, the Secretary shall allocate
  30,000 acre-feet per year of stored water in Big Horn Reservoir, Yellowtail
  Unit, Lower Bighorn Division, Pick-Sloan Missouri Basin Program, Montana,
  measured at the outlet works of the dam or at the diversion point from
  the Reservoir, for use or disposition by the Tribe for any purpose.
  (2) PRIOR RESERVED RIGHTS- This allocation shall be subject to the prior
  reserved water rights, if any, of any Indian tribe, or of persons claiming
  water through that tribe, to the water allocated in paragraph (1).
  (b) PAYMENTS BY TRIBE-
  (1) IN GENERAL- The Tribe shall not be required to make payments to the
  United States for the portion of the tribal water right stored in or used
  from the Big Horn Reservoir except for each acre-foot of stored water used
  or sold for municipal or industrial purposes. The Tribe shall pay annually
  to the United States an amount to cover the proportionate share of the--
  (A) annual operation, maintenance and replacement costs for the Yellowtail
  Unit allocable to the amount of water for municipal and industrial purposes
  used or sold by the Tribe; and
  (B) capital costs with appropriate interest for the Yellowtail Unit
  allocable to the amount of water for municipal and industrial purposes
  used or sold by the Tribe.
  (2) ADJUSTMENT OF PAYMENTS- The annual payments shall be reviewed and
  adjusted, as appropriate, to reflect the actual operation, maintenance,
  and replacement costs, and the actual capital costs, for the Yellowtail Unit.
  (c) USE AND SALE OF WATER-
  (1) IN GENERAL- Except for payments required to be made to the United
  States pursuant to subsection (b), the Tribe shall--
  (A) set such rates as it considers proper for its use or sale of stored
  water; and
  (B) retain all revenues from its use or sale of the stored water.
  (2) HYDROPOWER GENERATION- The United States shall retain the right to use
  any and all water stored in the Big Horn Reservoir for hydropower generation.
  (d) AGREEMENT WITH TRIBE- The Secretary shall enter into an agreement with
  the Tribe providing--
  (1) for the Tribe's use or sale of water stored in the Big Horn Reservoir
  subject to the terms and conditions of the Compact; and
  (2) for the collection and disposition of revenues in connection with
  water stored in the Big Horn Reservoir that is made available to the Tribe.
  (e) MORATORIUM ON WATER MARKETING- Notwithstanding any provision of this
  Act or the Compact, no portion of the allocation described in paragraph (1)
  of subsection (a) shall be sold or leased by the Tribe for a period of 10
  years following the date on which the Compact becomes effective pursuant to
  Article V(A)(1) of the Compact or for a period of 10 years following any
  earlier date on which the allocation may become available to the Tribe,
  unless the Crow Tribe and the Northern Cheyenne Tribe agree otherwise.
  (f) LIMITATION ON WATER MARKETING- The Secretary may enter into contracts
  for the sale or lease of water to which the United States holds legal
  title and which is stored in the Big Horn Reservoir, except that with
  respect to any such contract--
  (1) the Secretary provides notice to the Northern Cheyenne Tribe and the
  Crow Tribe of his intent to enter into a contract at least 120 days in
  advance of entering into such contract;
  (2) the terms of the contract for sale or lease of water provide that the
  contract will not exceed a 2-year term, with a right of renewal following
  a 120-day notice period to the Northern Cheyenne Tribe and Crow Tribe; and
  (3) the terms of the contract for sale or lease of water contain a
  provision that makes clear that the contract is subject  to alteration
  or termination by the United States pending the resolution of claims to
  water by the Crow Tribe.
SEC. 10. TONGUE RIVER DAM PROJECT.
  (a) IN GENERAL- The Secretary shall enter into a cooperative agreement with
  the State of Montana for the planning, design, and construction of the Tongue
  River Dam Project in accordance with the provisions of the April 17, 1991,
  letter of agreement signed by the Northern Cheyenne Tribe Federal Negotiating
  Team and the Montana Department of Natural Resources and Conservation. The
  Secretary shall also enter into a cooperative agreement with the State of
  Montana for compliance with the National Environmental Policy Act of 1969
  (42 U.S.C. 4321 et seq.) on the Tongue River Dam Project.
  (b) OWNERSHIP- Notwithstanding Federal participation in the Tongue River
  Dam Project, the Tongue River Dam shall remain in the ownership of the
  State of Montana.
  (c) STATE OPERATION OF RESERVOIR- Except as otherwise provided in the
  Compact, nothing in this Act shall affect the State's operation of the
  Tongue River Reservoir to fulfill State water contracts.
  (d) CONGRESSIONAL INTENT- Nothing in this Act is intended to subject
  holders of State water contracts from the Tongue River Reservoir who do
  not have a contract for Federal reclamation storage to the provisions of
  the Reclamation Reform Act of 1982 (43 U.S.C. 390aa et seq.).
  (e) LAND TRANSFER-
  (1) Notwithstanding any other provisions of law, the Bureau of Land
  Management shall transfer to the Bureau of Indian Affairs in trust for
  the Northern Cheyenne Tribe the following described land:
   T. 8 S., R. 40 E., P.M.M.
  Sec. 26, N 1/2 SW 1/4
  Sec. 27, N 1/2 SE 1/4
  T. 8 S., R. 40 E., P.M.M.
  Sec. 23, SW 1/4 NE 1/4 , N 1/2 SE 1/4
  Sec. 24, NW 1/4 SW 1/4 .
  (2) Nothing in this section is intended to address the jurisdiction of
  the Tribe or the State of Montana over the property being transferred.
  (3) This transfer shall not be construed as creating a Federal reserved
  water right.
  (f) PAYMENT OF THE TRIBE'S SHARE- The Secretary, acting through the Bureau
  of Indian Affairs, shall continue to pay annually to the State of Montana
  on a nonreimbursable basis an amount to cover the proportionate share of
  the annual operation, maintenance and replacement costs for the Tongue
  River Dam allocable to the Tribe's stored water in the reservoir.
  (g) EMPLOYMENT PREFERENCE- Notwithstanding any other provision of law,
  the State shall require in all contracts and subcontracts relating
  to construction of the Tongue River Dam Project, a provision that the
  contractor and its subcontractors shall provide a hiring preference to
  Northern Cheyenne tribal members. The State and the Tribe shall enter
  into an agreement setting forth the manner in which the preference will
  be implemented and enforced.
SEC. 11. MISCELLANEOUS PROVISIONS.
  (a) WAIVER OF SOVEREIGN IMMUNITY- Notwithstanding the provisions of Article
  IV, Section G. of the Compact, the United States shall not be deemed to have
  waived its immunity from suit except to the extent provided in subsections
  (a), (b), and (c) of section 208 of the Act of July 10, 1952 (43 U.S.C. 666).
  (b) EFFECT ON YELLOWSTONE RIVER COMPACT- Nothing in this Act shall
  be construed to alter or amend any provision of the Yellowstone River
  Compact, as consented to in the Act entitled `An Act granting the consent
  of Congress to a Compact entered into by the States of Montana, North
  Dakota, and Wyoming relating to the waters of the Yellowstone River',
  approved October 30, 1951 (65 Stat. 663).
  (c) EFFECT ON RIGHTS OF OTHER TRIBES- Nothing in this Act is intended
  to quantify or otherwise adversely affect the land and water rights, or
  claims or entitlements to land or water, of an Indian Tribe other than
  the Northern Cheyenne Tribe.
  (d) ENVIRONMENTAL COMPLIANCE- In implementing the Compact, the Secretary
  shall comply with all aspects of the National Environmental Policy Act of
  1969 (42 U.S.C. 433-4335), and the Endangered Species Act (16 U.S.C. 1531
  et seq.), and other applicable environmental Acts and regulations.
  (e) EXECUTION OF COMPACT- Execution of the Compact by the Secretary
  as provided for in section 4 shall not constitute major Federal action
  under the National Environmental Policy Act (42 U.S.C. 4321 et seq.). The
  Secretary is directed to carry out all necessary environmental compliance
  during the implementation phase of this settlement.
  (f) BUREAU OF RECLAMATION DESIGNATED AS THE LEAD AGENCY- With respect to
  the Tongue River Dam Project and uses of the Tribe's Big Horn Reservoir
  storage allocation, the Bureau of Reclamation is designated as the lead
  agency in regard to environmental compliance, and shall coordinate and
  cooperate with the other affected Federal agencies as required under
  applicable environmental laws.
  (g) BUREAU OF INDIAN AFFAIRS DESIGNATED AS THE LEAD AGENCY- With respect
  to all other provisions of the Compact, the Bureau of Indian Affairs is
  designated as the lead agency in regard to environmental compliance, and
  shall coordinate and cooperate with the other affected Federal agencies
  as required under applicable environmental laws.
SEC. 12. APPLICATION OF PROVISIONS REGARDING ALLOCATION OF WATER RESOURCES.
  (a) FINDING- Congress finds that the allocation of water resources to
  the Tribe under this Act is uniquely suited to the geographic, social,
  and economic characteristics of the area and situation involved.
  (b) APPLICATION- The provisions of this Act regarding the allocation of
  water resources to the Tribe shall not be construed to be applied to nor
  be precedent for any other Indian water right claims.
SEC. 13. EFFECTIVE DATE OF SETTLEMENT.
  The settlement contained in this Act shall not become effective if a tribal
  referendum on the settlement is requested pursuant to the Northern Cheyenne
  Constitution within 60 days following the date of enactment of this Act,
  and the settlement fails to be approved in such referendum held within 120
  days following the date of enactment of this Act. If the settlement does
  not become effective pursuant to this section, the United States (including
  the Secretary and all other officers), the State of Montana, and the Tribe
  are relieved of all rights, entitlements, duties, responsibilities and
  authorities conferred, imposed or created by this Act. If a referendum is
  not requested within such 60-day period, the settlement shall take effect
  upon the date next following the expiration of such 60-day period. If
  a referendum is requested within such 60-day period, and the settlement
  is approved in a referendum held within 120 days following the date of
  enactment of this Act, the settlement shall take effect on the date next
  following the date of such approval.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.