Sec. 18. Waivers and releases of claims
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Subject to the retention of rights set forth in subsection (c), as consideration for recognition of the Tribal water rights and other benefits as set forth in the Compact and this Act, the Tribe, on behalf of itself and the members of the Tribe (but not tribal members in their capacities as allottees), and the United States, acting as trustee for the Tribe and the members of the Tribe (but not tribal members in their capacities as allottees), shall execute a waiver and release of all claims for water rights within the State that the Tribe, or the United States acting as trustee for the Tribe, asserted or could have asserted in any proceeding, including a State stream adjudication, on or before the enforceability date, except to the extent that such rights are recognized in the Compact and this Act.
Subject to the retention of claims set forth in subsection (c), as consideration for recognition of the Tribal water rights and other benefits as set forth in the Compact and this Act, the United States, acting as trustee for allottees, may execute a waiver and release of all claims for water rights within the Reservation that the United States, acting as trustee for the allottees, asserted or could have asserted in any proceeding, including a State stream adjudication, prior to and including the enforceability date, except to the extent that such rights are recognized in the Compact and this Act.
Subject to the retention of rights set forth in subsection (c), the Tribe, on behalf of itself and the members of the Tribe (but not tribal members in their capacities as allottees), shall execute a waiver and release of— all claims against the United States (including the agencies and employees of the United States) relating to claims for water rights within the State that the United States, acting as trustee for the Tribe, asserted or could have asserted in any proceeding, including a stream adjudication in the State, except to the extent that such rights are recognized as Tribal water rights under this Act; all claims against the United States (including the agencies and employees of the United States) relating to damages, losses, or injuries to water, water rights, land, or natural resources due to loss of water or water rights (including damages, losses, or injuries to hunting, fishing, gathering, or cultural rights due to loss of water or water rights, claims relating to interference with, diversion, or taking of water, or claims relating to failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) within the State that first accrued at any time prior to and including the enforceability date; all claims against the United States (including the agencies and employees of the United States) relating to the failure to establish or provide a municipal rural or industrial water delivery system on the Reservation; all claims against the United States (including the agencies and employees of the United States) relating to deferral of maintenance for the Blackfeet Irrigation Project or the failure to provide dam safety improvements for Four Horns Reservoir; all claims against the United States (including the agencies and employees of the United States) relating to the litigation of claims relating to the water rights of the Tribe in the State; all claims against the United States (including the agencies and employees of the United States) relating to the negotiation, execution, or the adoption of the Compact (including exhibits) and this Act; all claims against the United States (including the agencies and employees of the United States) reserved in subsections
(b)through
(d)of section 6 of the settlement for the case styled Blackfeet Tribe v. United States, No. 02–127L (Fed. Cl. 2012); all claims against the United States (including the agencies and employees of the United States) that first accrued at any time on or before the enforceability date arising from the taking or acquisition of the land of the Tribe or resources for the construction of the features of the St. Mary Unit of the Milk River Project; all claims against the United States (including the agencies and employees of the United States) that first accrued at any time on or before the enforceability date relating to the construction, operation, and maintenance of the St. Mary Unit of the Milk River Project including Sherburne Dam, St. Mary Diversion Dam, St. Mary Canal and associated infrastructure and the management of flows in Swiftcurrent Creek, including the diversion of Swiftcurrent Creek into Lower St. Mary Lake; all claims against the United States (including the agencies and employees of the United States) that first accrued at any time on or before the enforceability date relating to the construction, operation, and management of Lower Two Medicine Dam and Reservoir and Four Horns Dam and Reservoir; and all claims against the United States (including the agencies and employees of the United States) that first accrued at any time on or before the enforceability date relating to the allocation of waters of the Milk River and St. Mary River (including tributaries) between the United States and Canada pursuant to the International Boundary Waters Treaty of 1909 (36 Stat. 2448). The waivers under subsection
(a)shall take effect on the enforceability date. Notwithstanding the waivers and releases authorized under this Act, the Tribe, on behalf of itself and the members of the Tribe, and the United States, acting as trustee for the Tribe and allottees, retain— all claims for enforcement of the Compact, any final decree, or this Act; all rights to use and protect water rights acquired after the date of enactment of this Act; all claims relating to activities affecting the quality of water, including any claims the Tribe may have under— the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ), including damages to natural resources; the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ) (commonly referred to as the Clean Water Act ); and any regulations implementing the Acts described in subparagraphs (A), (B), and (C); all claims relating to damages, losses, or injuries to land or natural resources that are not due to loss of water or water rights (including hunting, fishing, gathering, or cultural rights); all claims to title to land, including title to land as a result of the movement of water bodies; all claims relating to failure to make productive use of any land created by the movement of water bodies to which the Tribe has claimed title; and all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to this Act or the Compact. Nothing in the Compact or this Act— affects the ability of the United States, acting as a sovereign, to take actions authorized by law, including any laws relating to health, safety, or the environment, including— the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ); the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ) (commonly referred to as the Clean Water Act ); and any regulations implementing the Acts described in subparagraphs (A), (B), and (C); affects the ability of the United States to act as trustee for any other Indian tribe or allottee of any other Indian tribe; confers jurisdiction on any State court— to interpret Federal law regarding health, safety, or the environment; to determine the duties of the United States or other parties pursuant to Federal law regarding health, safety, or the environment; or to conduct judicial review of Federal agency action; waives any claim of a member of the Tribe in an individual capacity that does not derive from a right of the Tribe; revives any claim waived by the Tribe in the case styled Blackfeet Tribe v. United States, No. 02–127L (Fed. Cl. 2012); or revives any claim released by an allottee or a tribal member in the settlement for the case styled Cobell v. Salazar, No. 1:96CV01285–JR (D.D.C. 2012). The enforceability date shall be the date on which the Secretary publishes in the Federal Register a statement of findings that— the Montana Water Court has issued a final judgment and decree approving the Compact; or if the Montana Water Court is found to lack jurisdiction, the United States district court has approved the Compact as a consent decree and the approval is final; all amounts authorized to be appropriated under section 16(a) have been appropriated; the State has appropriated and paid into an interest-bearing escrow account any payments due as of the date of enactment of this Act to the Tribe under the Compact, the Birch Creek Agreement, and this Act; the State has appropriated and deposited into the Birch Creek Mitigation Fund $14,000,000 to mitigate the impacts of the development of the tribal water right described in article III.C.1. of the Compact on the Birch Creek water supplies of the Pondera County Canal and Reservoir Company; the Tribe has ratified the Compact by submitting this Act and the Compact to a vote by the tribal membership for approval or disapproval; and the Tribal membership has voted to approve this Act and the Compact by a majority of votes cast on the day of the vote, as certified by the Secretary and the Tribe; the Secretary has fulfilled the requirements of section 9(a); and the waivers and releases described in subsection
(a)have been executed by the Tribe and the Secretary. Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the period beginning on the date of enactment of this Act and ending on the date on which the amounts made available to carry out this Act are transferred to the Secretary. Nothing in this subsection revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act. If all appropriations authorized under this Act have not been made available to the Secretary by January 21, 2020, the waivers authorized in this section shall expire and be of no further force or effect. If the waivers pursuant to this section are void under subsection (g)— the approval of the United States of the Compact under section 4 shall no longer be effective; any unexpended Federal funds appropriated or made available to carry out the activities authorized in this Act, together with any interest earned on those funds, and any water rights or contracts to use water and title to other property acquired or constructed with Federal funds appropriated or made available to carry out the activities authorized under this Act shall be returned to the Federal Government, unless otherwise agreed to by the Tribe and the United States and approved by Congress; and except for Federal funds used to acquire or develop property that is returned to the Federal Government under paragraph (2), the United States shall be entitled to offset any Federal funds appropriated or made available to carry out the activities authorized under this Act that were expended or withdrawn, together with any interest accrued, against any claims against the United States relating to water rights in the State asserted by the Tribe or any users of the Tribal water rights or in any future settlement of the water rights of the Tribe or allottees.
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- 36 Stat. 2448
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