Sec. 5. Tribal water rights
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The Tribal water rights are ratified, confirmed, and declared to be valid. Any use of the Tribal water rights 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, this Act shall control. It is the intent of Congress to provide to each allottee benefits that are equivalent to, or exceed, the benefits the 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 Compact and this Act; the availability of funding under this Act and from other sources; the availability of water from the Tribal water rights; and the applicability of section 7 of the Act of February 8, 1887 (24 Stat. 390, chapter 119; 25 U.S.C. 381 ), and this Act to protect the interests of allottees.
The Tribal water rights— shall be held in trust by the United States for the use and benefit of the Fort Belknap Indian Community and allottees in accordance with this Act; and shall not be subject to loss through non-use, forfeiture, or abandonment. The provisions of section 7 of the Act of February 8, 1887 (24 Stat. 390, chapter 119; 25 U.S.C. 381 ), relating to the use of water for irrigation purposes, shall apply to the Tribal water rights. Any entitlement to water of an allottee under Federal law shall be satisfied from the Tribal water rights.
An allottee shall be entitled to a just and equitable allocation of water for irrigation purposes. Before asserting any claim against the United States under section 7 of the Act of February 8, 1887 (24 Stat. 390, chapter 119; 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. After the 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 (24 Stat. 390, chapter 119; 25 U.S.C. 381 ), or other applicable law.
The Secretary shall have the authority to protect the rights of allottees in accordance with this section. The Fort Belknap Indian Community shall have the authority to allocate, distribute, and lease the Tribal water rights for use on the Reservation in accordance with the Compact, this Act, and applicable Federal law. The Fort Belknap Indian Community may allocate, distribute, and lease the Tribal water rights for off-Reservation use in accordance with the Compact, this Act, and applicable Federal law— subject to the approval of the Secretary; or pursuant to Tribal water leasing regulations consistent with the requirements of subsection (f).
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 Tribal water code. At the discretion of the Fort Belknap Indian Community, any water lease of the Fort Belknap Indian Community of the Tribal water rights for use on or off the Reservation shall not require the approval of the Secretary if the lease— is executed under tribal regulations, approved by the Secretary under this subsection; is in accordance with the Compact; and does not exceed a term of 100 years, except that a lease may include an option to renew for 1 additional term of not to exceed 100 years.
The Secretary shall have the authority to approve or disapprove any Tribal water leasing regulations issued in accordance with paragraph (1). The Secretary shall approve any Tribal water leasing regulations issued in accordance with paragraph
(1)if the Tribal water leasing regulations— provide for an environmental review process that includes— the identification and evaluation of any significant effects of the proposed action on the environment; and a process for ensuring that— the public is informed of, and has a reasonable opportunity to comment on, any significant environmental impacts of the proposed action identified by the Fort Belknap Indian Community; and the Fort Belknap Indian Community provides responses to relevant and substantive public comments on those impacts prior to its approval of a water lease; and are consistent with this Act and the Compact. Not later than 120 days after the date on which Tribal water leasing regulations under paragraph
(1)are submitted to the Secretary, the Secretary shall review and approve or disapprove the regulations. If the Secretary disapproves the Tribal water leasing regulations described in subparagraph (A), the Secretary shall include written documentation with the disapproval notification that describes the basis for this disapproval. The deadline described in subparagraph
(A)may be extended by the Secretary, after consultation with the Fort Belknap Indian Community. Notwithstanding paragraphs
(2)and (3), if the Fort Belknap Indian Community carries out a project or activity funded by a Federal agency, the Fort Belknap Indian Community— shall have the authority to rely on the environmental review process of the applicable Federal agency; and shall not be required to carry out a tribal environmental review process under this subsection. If the Fort Belknap Indian Community issues a lease pursuant to Tribal water leasing regulations under paragraph (1), the Fort Belknap Indian Community shall provide the Secretary and the State a copy of the lease, including any amendments or renewals to the lease. The United States shall not be liable in any claim relating to the negotiation, execution, or approval of any lease or exchange agreement or storage agreement, including any claims relating to the terms included in such an agreement, made pursuant to Tribal water leasing regulations under paragraph (1). The United States shall have no trust obligation or other obligation to monitor, administer, or account for— any funds received by the Fort Belknap Indian Community as consideration under any lease or exchange agreement or storage agreement; or the expenditure of those funds. Notwithstanding Article IV.A.2. of the Compact, not later than 4 years after the date on which the Fort Belknap Indian Community approves the Compact in accordance with section 11(f)(1), the Fort Belknap Indian Community shall enact a Tribal water code that provides for— the administration, management, regulation, and governance of all uses of the Tribal water rights in accordance with the Compact and this Act; and the establishment by the Fort Belknap Indian Community of the conditions, permit requirements, and other requirements for the allocation, distribution, or use of the Tribal water rights in accordance with the Compact and this Act. Subject to the approval of the Secretary, the Tribal water code shall provide— that use of water by allottees shall be satisfied with water from the Tribal water rights; a process by which an allottee may request that the Fort Belknap Indian Community provide water for irrigation use in accordance with this Act, including the provision of water under any allottee lease under section 4 of the Act of June 25, 1910 (36 Stat. 856, chapter 431; 25 U.S.C. 403 ); a due process system for the consideration and determination by the Fort Belknap Indian Community of any request of an allottee (or a successor in interest to an allottee) for an allocation of water for irrigation purposes 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; a requirement that any allottee asserting a claim relating to the enforcement of rights of the allottee under the Tribal water code, including to the quantity of water allocated to land of the allottee, shall exhaust all remedies available to the allottee under Tribal law before initiating an action against the United States or petitioning the Secretary pursuant to subsection (d)(4)(B); a process by which an owner of fee land within the boundaries of the Reservation may apply for use of a portion of the Tribal water rights; and a process for the establishment of a controlled Groundwater area and for the management of that area in cooperation with establishment of a contiguous controlled Groundwater area off the Reservation established pursuant to Section B.2. of Article IV of the Compact and State law. 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 rights in accordance with the Compact and 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 by not later than 180 days after the date on which the Tribal water code or amendment to the Tribal water code is submitted to the Secretary. The deadline described in clause
(i)may be extended by the Secretary, after consultation with the Fort Belknap Indian Community. The Fort Belknap Indian Community shall not permanently alienate any portion of the Tribal water rights. 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 required by Federal law. The non-use of all or any portion of the Tribal water rights by any water user shall not result in the forfeiture, abandonment, relinquishment, or other loss of all or any portion of the Tribal water rights. 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 Fort Belknap Indian Community, 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. Notwithstanding any other provision of law, the Secretary, in cooperation with the Secretary of Energy, shall make available the Pick-Sloan Missouri River Basin Program irrigation project pumping power rates to the Fort Belknap Indian Community, the Fort Belknap Indian Irrigation Project, and any projects funded under this Act. The power rates made available under paragraph
(1)shall be authorized for the purposes of wheeling, administration, and payment of irrigation project pumping power rates, including project use power for gravity power.
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- 24 Stat. 390
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