Sec. 5. Kickapoo Tribe water rights
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/bill/116/s/1977/is/section-5A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
It is the intent of Congress to provide to each allottee benefits that are equivalent to, or exceed, the benefits allottees possess on the day before the date of enactment of this Act, taking into consideration— the potential risks, cost, and time delay associated with litigation that would be resolved by the Settlement Agreement and this Act; the availability of funding under this Act and from other sources; the availability of water from the Tribal water right; and the applicability of section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), and this Act to protect the interests of allottees.
A consumptive Tribal water right of up to 4,705 acre-feet of water per year is confirmed in accordance with the terms and conditions of the Settlement Agreement. Consistent with the Settlement Agreement, the priority date of the Tribal water right shall be October 24, 1832. The Tribe may use the Tribal water right for any purpose set forth in the Settlement Agreement, this Act, and applicable Federal law. The Tribal water right— shall be held in trust by the United States on behalf of the Tribe and its members and allottees in accordance with this section; and shall not be subject to forfeiture or abandonment.
The provisions of section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), relating to the use of water for irrigation purposes shall apply to the Tribal water right. Any entitlement to water of an allottee under Federal law shall be satisfied from the Tribal water right. An allottee shall be entitled to a just and equitable allocation of water for irrigation. Members who do not own interests in allotted land shall nonetheless be entitled to the use of a portion of the Tribal water right pursuant to the terms and conditions of the Kickapoo Tribe Water Rights Settlement Agreement and the Tribal Water Code.
Before asserting any claim against the United States under section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), or any other applicable law, an allottee shall exhaust remedies available under the Tribal Water Code or other applicable Tribal law. Following exhaustion of all remedies available under the Tribal Water Code or other applicable tribal law, an allottee may seek relief under section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ), or other applicable law. The Secretary shall have the authority to protect the rights of members or allottees in accordance with this section.
Except as provided in paragraph (3), the Tribe shall have authority to use, allocate, distribute, and lease the Tribal water right for any use on the Reservation in accordance with the Settlement Agreement, this Act, the Tribal Water Code or other Tribal law, and applicable Federal law. The Tribe may allocate, distribute, and lease the Tribal water right for off-Reservation use in accordance with the Settlement Agreement, subject to the approval of the Secretary. An allottee may lease any interest in land held by the allottee, together with any water rights determined to be appurtenant to that interest in land, in accordance with the Tribal Water Code.
An allottee may lease any water rights determined to be appurtenant to its allotment for off-Reservation in accordance with the Settlement Agreement, subject to the approval of the Secretary. Not later than 3 years after the enforceability date, the Tribe shall enact a Tribal Water Code, that provides for— the management, regulation, and governance of all uses of the Tribal water right in accordance with the Settlement Agreement and this Act; and establishment by the Tribe of conditions, permit requirements, and other requirements for the allocation, distribution, diversion, storage, and use of the Tribal water right in accordance with the Settlement Agreement and this Act.
Subject to the approval of the Secretary, the Tribal Water Code shall provide— that any use of water by allottees shall be satisfied with water from the Tribal water right; a process by which an allottee may request that the Tribe provide water for irrigation purposes in accordance with this Act, including the provision of water under any allottee lease under section 4 of the Act of June 25, 1910 ( 25 U.S.C. 403 ); that charges for delivery of water for irrigation purposes for allottees shall be assessed in accordance with section 7 of the Act of February 8, 1887 ( 25 U.S.C. 381 ); a due process system for the consideration and determination by the Tribe of any request by a member or allottee (or a successor in interest to an allottee) for an allocation of water for irrigation on allotted land, including a process for— appeal and adjudication of any denied or disputed distribution of water; and resolution of any contested administrative decision; and a requirement that any member or allottee with a claim relating to the enforcement of rights of the member or allottee under the Tribal Water Code, or to the quantity of water allocated to land of the allottee, shall exhaust all remedies available to the member or allottee under Tribal law before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(5).
During the period beginning on the date of enactment of this Act and ending on the date on which a Tribal Water Code described in paragraphs
(1)and
(2)is enacted, the Secretary shall administer, with respect to the rights of allottees, the Tribal water right in accordance with this Act. The Tribal Water Code described in paragraphs
(1)and
(2)shall not be valid unless— the provisions of the Tribal Water Code required by paragraph
(2)are approved by the Secretary; and each amendment to the Tribal Water Code that affects a right of an allottee is approved by the Secretary. The Secretary shall approve or disapprove the Tribal Water Code or an amendment to the Tribal Water Code within a reasonable period of time after the date on which the Tribe submits the Tribal Water Code or amendment to the Secretary for approval. The Tribe shall not permanently alienate any portion of the Tribal water right. An authorization provided by this Act for the allocation, distribution, leasing, or other arrangement entered into pursuant to this Act shall be considered to satisfy any requirement for authorization of the action by treaty or convention imposed by section 2116 of the Revised Statutes ( 25 U.S.C. 177 ). The non-use of all or any portion of the Tribal water right by a lessee or contractor shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Tribal water right. Except as otherwise expressly provided in this section, nothing in this Act— authorizes any action by a member or allottee (or any successor in interest to an allottee) against any individual or entity, or against the Tribe, under Federal, State, Tribal, or local law; or alters or affects the status of any action pursuant to section 1491(a) of title 28, United States Code.
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