Sec. 5. Tribal Water Right
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It is the intent of Congress to provide to each allottee benefits that are equivalent to, or that exceed, the benefits possessed by the allottees 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 Compact 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.
The Tribal Water Right is ratified, confirmed, and declared to be valid. Any use of the Tribal Water Right shall be subject to the terms and conditions of— the Compact; and this Act. In the event of a conflict between the Compact and this Act, the provisions of this Act shall control. The Tribal Water Right— shall be held in trust by the United States for the use and benefit of the Tribes and the allottees in accordance with this Act; 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. Each allottee shall be entitled to a just and equitable allocation of water for irrigation purposes, to be enforceable under paragraph (3)(B). 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 Law of Administration; or other applicable law.
After the exhaustion of all remedies available under the Law of Administration or other applicable 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, to seek a just and equitable allocation of water for irrigation purposes under paragraph (2)(B). The Secretary shall have the authority to protect the rights of allottees in accordance with this section. The Tribes shall have the authority to allocate, distribute, and lease the Tribal Water Right for any use on the Reservation in accordance with— the Compact; the Law of Administration; this Act; and applicable Federal law.
The Tribes may allocate, distribute, and lease the Tribal Water Right for off-Reservation use in the State in accordance with the Compact, subject to the approval of the Secretary. Notwithstanding paragraph (1), an allottee may lease any interest in land held by the allottee, together with any water right determined to be appurtenant to the interest in land, in accordance with the Law of Administration. During the period beginning on the date of enactment of this Act and ending on the date on which the Law of Administration becomes effective on the Reservation, the Secretary shall administer, with respect to the rights of allottees, the Tribal Water Right in accordance with this Act.
The Law of Administration is approved. As provided in sections 3 and 4 of article IX of the Montana State Constitution and section 1–1–108 of the Law of Administration, all registrations shall be provided to the department of natural resources and conservation of the State, to be entered into the water rights database of the department. An amendment to the Law of Administration that affects a right of an allottee shall not be valid unless the amendment is approved by the Secretary in accordance with this subsection.
Subject to subparagraph (B), the Secretary shall approve or disapprove an amendment to the Law of Administration by not later than 180 days after the date of ratification of the Law of Administration by the Tribes and the State. The deadline described in subparagraph
(A)may be extended by the Secretary after consultation with the Tribes. In the event of a conflict between the Law of Administration and this Act, the provisions of this Act shall control. The Tribes shall not permanently alienate any portion of the Tribal Water Right. An authorization provided by this Act for an allocation, distribution, lease, or any other arrangement shall be considered to satisfy any requirement for authorization of the action by treaty or convention under section 2116 of the Revised Statutes ( 25 U.S.C. 177 ). The nonuse 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 an allottee against any individual or entity, or against the Tribes, under Federal, State, Tribal, or local law; or alters or affects the status of any action brought pursuant to section 1491(a) of title 28, United States Code.
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