Sec. 5. Water Rights
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The Water Rights of the Navajo Nation, the Hopi Tribe, the San Juan Southern Paiute Tribe, the Navajo Allottees, and the Hopi Allottees as described in the Settlement Agreement are ratified, confirmed, and declared to be valid. Any use of water pursuant to the Water Rights described in paragraph
(1)by the Navajo Nation, the Hopi Tribe, the San Juan Southern Paiute Tribe, the Navajo Allottees, or the Hopi Allottees shall be subject to the terms and conditions of the Settlement Agreement and this Act. In the event of a conflict between the Settlement Agreement and this Act, this Act shall control. It is the intent of Congress to provide to the Navajo Allottees benefits that are equivalent to, or exceed, the benefits the Navajo 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 Water Rights of the Navajo Nation, as described in the Settlement Agreement; 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 the Navajo Allottees. The United States shall hold the following Water Rights in trust for the Navajo Nation, the Hopi Tribe, the San Juan Southern Paiute Tribe, the Navajo Allottees, and the Hopi Allottees: The United States shall hold the following Water Rights in trust for the Navajo Nation and Navajo Allottees: Underground Water described in subparagraph 4.2 of the Settlement Agreement. Springs described in subparagraph 4.4 of the Settlement Agreement. Little Colorado River tributary water described in subparagraph 4.5 of the Settlement Agreement. Little Colorado River Mainstem water described in subparagraph 4.6 of the Settlement Agreement. Navajo Nation Upper Basin Colorado River Water described in subparagraph 4.7 of the Settlement Agreement. Navajo Nation Fourth Priority Water described in subparagraph 4.9 of the Settlement Agreement. Water Rights appurtenant to or associated with land held in trust by the United States for the Navajo Nation, as described in subparagraphs 4.12, 4.13, 4.15, and 4.16 of the Settlement Agreement. The United States shall hold the following Water Rights in trust for the Hopi Tribe: Underground Water described in subparagraph 5.2 of the Settlement Agreement. Surface Water described in subparagraph 5.4 of the Settlement Agreement. Springs described in subparagraph 5.5 of the Settlement Agreement. Hopi Tribe Upper Basin Colorado River Water described in subparagraph 5.7 of the Settlement Agreement. Water Rights appurtenant to or associated with land held in trust by the United States for the Hopi Tribe, as described in subparagraphs 5.10, 5.11, 5.12, and 5.13 of the Settlement Agreement. The United States shall hold the following Water Rights in trust for the San Juan Southern Paiute Tribe: Underground Water described in subparagraph 6.2.3 of the Settlement Agreement. Surface Water described in subparagraph 6.2.4 of the Settlement Agreement. Springs described in subparagraph 6.2.6 of the Settlement Agreement. Water Rights appurtenant to or associated with land held in trust by the United States for the San Juan Southern Paiute Tribe, as described in subparagraphs 6.5 and 6.6 of the Settlement Agreement. The United States shall hold the Water Rights described in subparagraph 5.9 of the Settlement Agreement in trust for the Hopi Allottees. The rights of the Navajo Nation, and the United States acting as trustee for the Navajo Nation, to the water described in subparagraphs 4.2, 4.4, 4.5, and 4.6 of the Settlement Agreement may be used anywhere on the Navajo Reservation or on Off-Reservation land held in trust by the United States for the Navajo Nation, but, except as provided in subparagraph (F), may not be sold, leased, transferred, or in any way used off of the Navajo Reservation or off of Off-Reservation land held in trust by the United States for the Navajo Nation. The place of Use of Navajo Nation Upper Basin Colorado River Water, Navajo Nation Cibola Water, and Navajo Nation Fourth Priority Water are as described in section 6(b)(1) . Water Use on Off-Reservation land held in trust by the United States for the Navajo Nation shall be governed by subparagraphs 4.12, 4.13, 4.15, 4.16, and 4.18.1 of the Settlement Agreement. Except as provided in subparagraph (F), the water referred to in clause
(i)may be used only on the Navajo Reservation and on Off-Reservation land held in trust by the United States for the Navajo Nation. Water Use on land owned in fee by the Navajo Nation shall be governed by subparagraphs 4.11, 4.12, 4.13, 4.14, 4.15, and 4.16 of the Settlement Agreement. The rights of a Navajo Allottee, or the United States acting as trustee for a Navajo Allottee, to use water described in subparagraph 4.10.1 of the Settlement Agreement on a Navajo Allotment may not be sold, leased, transferred, or in any way used off of the Navajo Allotment, except for Use on the Navajo Reservation pursuant to the Navajo Nation Water Code. Notwithstanding subparagraphs
(A)and (C)(ii) and subparagraph 7.2.3.1 of the Settlement Agreement, the Navajo Nation or the United States acting as trustee for the Navajo Nation may provide water for municipal Use off of the Navajo Reservation from facilities that are physically connected to facilities on the Navajo Reservation. The rights of the Hopi Tribe, and the United States acting as trustee for the Hopi Tribe, to the water described in subparagraphs 5.2, 5.4, and 5.5 of the Settlement Agreement may be used anywhere on the Hopi Reservation or on Off-Reservation land held in trust by the United States for the Hopi Tribe, but, except as provided in subparagraph (F), may not be sold, leased, transferred, or in any way used off of the Hopi Reservation or off of Off-Reservation land held in trust by the United States for the Hopi Tribe. The place of Use of Hopi Tribe Upper Basin Colorado River Water and Hopi Tribe Cibola Water are as described in section 6(b)(2) . Water Use on Off-Reservation land held in trust by the United States for the Hopi Tribe shall be governed by subparagraphs 5.10, 5.11, 5.12, 5.13, and 5.15.1 of the Settlement Agreement. Except as provided in subparagraph (F), the water referred to in clause
(i)may be used only on the Hopi Reservation and on Off-Reservation land held in trust by the United States for the Hopi Tribe. Water Use on land owned in fee by the Hopi Tribe shall be governed by subparagraphs 5.10, 5.11, and 5.12 of the Settlement Agreement. The rights of a Hopi Allottee, or the United States acting as trustee for a Hopi Allottee, to use water described in subparagraph 5.9 of the Settlement Agreement on a Hopi Allotment may not be sold, leased, transferred, or in any way used off of the Hopi Allotment. Notwithstanding subparagraphs
(A)and (C)(ii) and subparagraph 7.2.3.1 of the Settlement Agreement, the Hopi Tribe or the United States acting as trustee for the Hopi Tribe may provide water for municipal Use off of the Hopi Reservation from facilities that are physically connected to facilities on the Hopi Reservation. The rights of the San Juan Southern Paiute Tribe, and the United States acting as trustee for the San Juan Southern Paiute Tribe, to the water described in subparagraphs 6.2.3, 6.2.4, and 6.2.6 of the Settlement Agreement may be used on the San Juan Southern Paiute Southern Area or on Off-Reservation land held in trust by the United States for the San Juan Southern Paiute Tribe, but may not be sold, leased, transferred, or in any way used off of the San Juan Southern Paiute Southern Area or off of Off-Reservation land held in trust by the United States for the San Juan Southern Paiute Tribe. Water Use on Off-Reservation land held in trust by the United States for the San Juan Southern Paiute Tribe shall be governed by subparagraphs 6.5, 6.6, and 6.7.1 of the Settlement Agreement. Except as provided in subparagraph (D), the water referred to in clause
(i)may be used only on the San Juan Southern Paiute Southern Area and on Off-Reservation land held in trust by the United States for the San Juan Southern Paiute Tribe. Water Use on land owned in fee by the San Juan Southern Paiute Tribe shall be governed by subparagraphs 6.4, 6.5, and 6.6 of the Settlement Agreement. Notwithstanding subparagraphs
(A)and (B)(ii) and subparagraph 7.2.3.1 of the Settlement Agreement, and subject to subparagraph 12.5.1.3 of the Settlement Agreement, the San Juan Southern Paiute Tribe or the United States acting as trustee for the San Juan Southern Paiute Tribe may provide water for municipal Use off of the San Juan Southern Paiute Southern Area from facilities that are physically connected to facilities on the San Juan Southern Paiute Southern Area. Water Rights of the Navajo Nation and the Navajo Allottees described in subparagraphs 4.2, 4.4, 4.5, 4.6, 4.7, and 4.9 of the Settlement Agreement and Water Rights relating to land held in trust by the United States for the Navajo Nation, as described in subparagraphs 4.12, 4.13, 4.15, and 4.16 of the Settlement Agreement, shall not be subject to loss by non-use, forfeiture, or abandonment. Water Rights of the Hopi Tribe described in subparagraphs 5.2, 5.4, 5.5, and 5.7 of the Settlement Agreement and Water Rights relating to land held in trust by the United States for the Hopi Tribe, as described in subparagraphs 5.10, 5.11, 5.12, and 5.13 of the Settlement Agreement, shall not be subject to loss by non-use, forfeiture, or abandonment. Water Rights of the San Juan Southern Paiute Tribe described in subparagraphs 6.2.3, 6.2.4, and 6.2.6 of the Settlement Agreement shall not be subject to loss by non-use, forfeiture, or abandonment. Water Rights of the Hopi Allottees described in subparagraph 5.9 of the Settlement Agreement shall not be subject to loss by non-use, forfeiture, or abandonment. Section 7 of the Act of February 8, 1887 (24 Stat. 390, chapter 119; 25 U.S.C. 381 ), shall apply to the Water Rights described in subsection (c)(1). The rights of Navajo Allottees, and the United States acting as trustee for Navajo Allottees, to use water on Navajo Allotments located on the Navajo Reservation shall be satisfied solely from the Water Rights described in subsection (c)(1). A Navajo Allottee shall be entitled to a just and equitable distribution 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, a Navajo Allottee shall exhaust remedies available under the Navajo Nation Water Code or other applicable Navajo law. After the exhaustion of all remedies available under the Navajo Nation Water Code or other applicable Navajo law pursuant to subparagraph (A), a Navajo 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 may protect the rights of Navajo Allottees in accordance with this subsection. The Navajo Nation Water Code shall provide— that Use of water by Navajo Allottees shall be satisfied with water from the Water Rights described in subsection (c)(1); a process by which a Navajo Allottee may request that the Navajo Nation allocate water in accordance with the Settlement Agreement, including the provision of water under any Navajo 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 Navajo Nation of any request of a Navajo Allottee (or a successor in interest to a Navajo Allottee) for an allocation of water on a Navajo Allotment, 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 Navajo Allottee asserting a claim relating to the enforcement of rights of the Navajo Allottee under the Navajo Nation Water Code, including to the quantity of water allocated to land of the Navajo Allottee, shall exhaust all remedies available to the Navajo Allottee under Navajo law before initiating an action against the United States or petitioning the Secretary pursuant to subsection (f)(4)(B). After consultation with the Navajo Nation, the Secretary shall determine whether the Navajo Nation Water Code in effect on the date of enactment of this Act satisfies the requirements of paragraph (1). If the Secretary determines that the Navajo Nation Water Code in effect on the date of enactment of this Act satisfies the requirements of paragraph (1), the Secretary shall notify the Navajo Nation of that determination in writing. If the Secretary determines that the Navajo Nation Water Code in effect on the date of enactment of this Act does not satisfy the requirements of paragraph (1), the Secretary shall notify the Navajo Nation in writing that amendments are necessary to satisfy the requirements of subsection (g)(1). Not later than 3 years after the date on which the Secretary notifies the Navajo Nation pursuant to paragraph (2)(C), the Navajo Nation shall amend the Navajo Nation Water Code and submit to the Secretary the amendments to the Navajo Nation Water Code for review and approval pursuant to subsection (h). The Secretary shall administer, with respect to the rights of the Navajo Allottees, the Water Rights identified under subsection (c)(1) during the period beginning on the date of enactment of this Act and ending on the earlier of— the date on which the Secretary provides notice to the Navajo Nation pursuant to paragraph (2)(B) of subsection
(g)that the Navajo Nation Water Code satisfies the requirements of paragraph
(1)of that subsection; and the date on which the Secretary has approved amendments to the Navajo Nation Water Code submitted pursuant to subsection (g)(3). The Navajo Nation Water Code amendments described in subsection (g)(3) shall not be valid unless— the amendments described in that subsection have been approved by the Secretary; and each subsequent amendment to the Navajo Nation Water Code that affects the rights of a Navajo Allottee is approved by the Secretary. If the Secretary requires amendments to the Navajo Nation Water Code pursuant to paragraph (2)(C) of subsection (g), the Secretary shall approve or disapprove the amendments to the Navajo Nation Water Code described in paragraph
(3)of that subsection not later than 180 days after the date on which the amendments are submitted to the Secretary. The deadline described in subparagraph
(A)may be extended by the Secretary after consultation with the Navajo Nation. Except as otherwise expressly provided in this section, nothing in this Act— authorizes any action by a Navajo Allottee against any individual or entity, or against the Navajo Nation, 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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- 24 Stat. 390
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